Trump lashes out at Gov. Doug Ducey following certification

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Motion for Partial Stay Pending Appeal
Donald J. Trump, Plaintiff-Appellee, v. United States of America, Defendant-Appellant.
No. 22-13005-F
by U.S. Department of Justice
September 16, 2022

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

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

On Appeal from the United States District Court
for the Southern District of Florida

MOTION FOR PARTIAL STAY PENDING APPEAL

JUAN ANTONIO GONZALEZ
United States Attorney
Southern District of Florida
99 NE 4th Street, 8th Floor
Miami, FL 33132
305-961-9001
MATTHEW G. OLSEN
Assistant Attorney General
JAY I. BRATT
Chief, Counterintelligence and Export
Control Section
JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
202-233-0986

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1, counsel for Defendants-Appellants certify that the following have an interest in the outcome of this appeal:

American Broadcasting Companies, Inc. (DIS)
Associated Press
Bloomberg, LP
Bratt, Jay I.
Brill, Sophia
Cable News Network, Inc. (WBD)
Cannon, Hon. Aileen M.
Caramanica, Mark Richard
CBS Broadcasting, Inc. (CBS)
Corcoran, M. Evan
Cornish, Sr., O’Rane M.
Cunningham, Clark
Dearie, Hon. Raymond J.
Dow Jones & Company, Inc. (DJI)
Edelstein, Julie
Eisen, Norman Larry
E.W. Scripps Company (SSP)
Finzi, Roberto
Fischman, Harris
Former Federal and State Government Officials
Fugate, Rachel Elise
Gonzalez, Juan Antonio
Gray Media Group, Inc. (GTN)
Gupta, Angela D.
Halligan, Lindsey
Inman, Joseph M.
Karp, Brad S.
Kessler, David K.
Kise, Christopher M Knopf, Andrew Franklin
Lacosta, Anthony W.
LoCicero, Carol Jean
McElroy, Dana Jane
Minchin, Eugene Branch
NBC Universal Media, LLC (CMCSA)
Patel, Raj K.
Rakita, Philip
Reeder, Jr., L. Martin
Reinhart, Hon. Bruce E.
Rosenberg, Robert
Seidlin-Bernstein, Elizabeth
Shapiro, Jay B.
Shullman, Deanna Kendall
Smith, Jeffrey
The New York Times Company (NYT)
The Palm Beach Post
Times Publishing Company
Tobin, Charles David
Trump, Donald J.
Trusty, James M.
United States of America
Wertheimer, Fred
WP Company. LLC.

Dated: September 16, 2022 /s/ Juan Antonio Gonzalez

Juan Antonio Gonzalez
United States Attorney

INTRODUCTION AND SUMMARY

The district court has entered an unprecedented order enjoining the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security. In August 2022, the government obtained a warrant to search the residence of Plaintiff, former President Donald J. Trump, based on a judicial finding of probable cause to believe that the search would reveal evidence of crimes including unlawful retention of national defense information. Along with other evidence, the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution. Two weeks later, Plaintiff filed an action seeking the appointment of a special master to review the seized materials and an injunction barring the government from continuing to use them in the meantime. The court granted that extraordinary relief, enjoining further review or use of any seized materials “for criminal investigative purposes” pending a special-master process that will last months. A36-A37.1

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.

First, the government is likely to succeed on the merits. The district court appointed a special master to consider claims for return of property under Federal Rule of Criminal Procedure 41(g) and assertions of attorney-client or executive privilege. All of those rationales are categorically inapplicable to the records bearing classification markings. Plaintiff has no claim for the return of those records, which belong to the government and were seized in a court-authorized search. The records are not subject to any possible claim of personal attorney-client privilege. And neither Plaintiff nor the court has cited any authority suggesting that a former President could successfully invoke executive privilege to prevent the Executive Branch from reviewing its own records. Any possible assertion of executive privilege over these records would be especially untenable and would be overcome by the government’s “demonstrated, specific need” for them, United States v. Nixon, 418 U.S. 683, 713 (1974), because they are central to its ongoing investigation.

Second, the government and the public would suffer irreparable harm absent a stay. The district court recognized the government’s overriding interest in assessing and responding to the national-security risk from the possible unauthorized disclosure of the records bearing classification markings. The court thus stated that its order was not intended to “impede” an ongoing “classification review and/or intelligence assessment” of those records by the Intelligence Community (IC). A14-A15. But as the head of the Counterintelligence Division of the Federal Bureau of Investigation (FBI) explained in a sworn declaration, the criminal investigation is itself essential to the government’s effort to identify and mitigate potential national-security risks. A38-A43. The court’s order hamstrings that investigation and places the FBI and Department of Justice (DOJ) under a Damoclean threat of contempt should the court later disagree with how investigators disaggregated their previously integrated criminal-investigative and national-security activities. It also irreparably harms the government by enjoining critical steps of an ongoing criminal investigation and needlessly compelling disclosure of highly sensitive records, including to Plaintiff’s counsel.

Third, the limited stay sought here would impose no cognizable harm on Plaintiff. It would not disturb the special master’s review of other materials, including records potentially subject to attorney-client privilege. Nor would a stay infringe any interest in confidentiality: The government’s criminal investigators have already reviewed the records bearing classification markings, and the district court’s order contemplates that the IC may continue to review and use them for certain national-security purposes.

Finally, because the government and the public will suffer irreparable injury absent a stay, the United States respectfully asks that the Court act on this motion as soon as practicable.

STATEMENT

A. Background

1. In the year after Plaintiff left office, the National Archives and Records Administration (NARA) endeavored to recover what appeared to be missing records subject to the Presidential Records Act (PRA). A44. The PRA provides that the United States retains “complete ownership, possession, and control of Presidential records,” 44 U.S.C. § 2202, which the law defines to include all records “created or received by the President” or his staff “in the course of conducting activities which relate to or have an effect upon” the President’s official duties, id. § 2201(2). The PRA specifies that when a President leaves office, NARA “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” Id. § 2203(g)(1).

Plaintiff ultimately provided NARA with 15 boxes of records in January 2022. A44. NARA discovered that the boxes contained “items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.” Id. Material is marked as Top Secret if its unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage” to national security. Exec. Order 13,526 § 1.2(1) (Dec. 29, 2009).

NARA referred the matter to DOJ, noting that highly classified records appeared to have been improperly transported and stored. A63-A64. DOJ then sought access to the 15 boxes under the PRA’s procedures governing presidential records in NARA’s custody. A44-A45; see 44 U.S.C. § 2205(2)(B). Plaintiff, after receiving notification of DOJ’s request, neither attempted to pursue any claim of executive privilege in court, see 44 U.S.C. § 2204(e), nor suggested that any documents bearing classification markings had been declassified. See A45.

2. The FBI developed evidence that additional boxes remaining at Plaintiff’s residence at the Mar-a-Lago Club in Palm Beach, Florida, were also likely to contain classified information. On May 11, 2022, Plaintiff’s counsel was served with a grand jury subpoena for “[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.” A48.

In response, Plaintiff’s counsel and his custodian of records produced an envelope containing 38 documents bearing classification markings. A76-A77. Plaintiff’s counsel represented that the records came from a storage room at Mar-a-Lago, where all records removed from the White House had been placed, and that no such records were in any other location. A76-A77. Plaintiff’s custodian also certified, “on behalf of the Office of Donald J. Trump,” that a “diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification.” A50. Again, Plaintiff did not assert any claim of privilege, and did not suggest that any documents bearing classification markings had been declassified.

3. The FBI uncovered evidence that the response to the grand-jury subpoena was incomplete, that classified documents likely remained at Mar-a-Lago, and that efforts had likely been undertaken to obstruct the investigation. On August 5, 2022, the government applied to a magistrate judge for a search warrant, citing 18 U.S.C. § 793 (willful retention of national defense information), 18 U.S.C. § 2071 (concealment or removal of government records), and 18 U.S.C. § 1519 (obstruction). A54. The magistrate judge found probable cause that evidence of those crimes would be found at Mar-a-Lago and authorized the government to seize, among other things, “[a]ny physical documents with classification markings, along with any containers/boxes ... in which such documents are located.” A96, A98. The magistrate judge also approved the government’s proposed filter protocols for handling any materials potentially subject to personal attorney-client privilege. A87-A88.

The government executed the warrant on August 8, 2022. The search recovered roughly 11,000 documents from the storage room as well as Plaintiff’s private office, roughly 100 of which bore classification markings, including markings indicating the highest levels of classification. A17 & n.4; see A51 (photograph); A115-A121 (inventory). In some instances, even FBI counterintelligence personnel required additional clearances to review the seized documents. Dist. Ct. Docket Entry (D.E.) 48 at 12-13.

B. Proceedings below

1. Two weeks later, Plaintiff filed a “Motion for Judicial Oversight and Additional Relief” asking the district court to appoint a special master to adjudicate potential claims of executive and attorney-client privilege, to enjoin DOJ from further review and use of the seized documents, and to order the government to return certain property under Rule 41(g). The district court granted Plaintiff’s motion in part, authorizing appointment of a special master to “review the seized property,” make recommendations on “assertions of privilege,” and “evaluate claims for return of property.” A36. Pending the special-master review, the court enjoined the government from “further review and use” of all seized materials “for criminal investigative purposes.” Id. The court stated that the government “may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.” A37.

The district court acknowledged that the exercise of equitable jurisdiction to restrain a criminal investigation is “reserved for ‘exceptional’ circumstances.” A21 (quoting Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974)). The court also concluded that Plaintiff had not shown that the court-authorized search violated his constitutional rights. A22. But the court concluded that the other considerations set forth in Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975), favored the exercise of jurisdiction, principally because the seized materials included some “personal documents.” Id.; see A22-A25. The court similarly found that Plaintiff had standing because he had made “a colorable showing of a right to possess at least some of the seized property,” namely, his personal effects and records potentially subject to personal attorney-client privilege. A26. The district court then held that “review of the seized property” was necessary to adjudicate Plaintiff’s claims for return of property and potential assertions of privilege. A27-A32. As to attorney-client privilege, the court concluded that further review would ensure that the attorney-client filter process approved in the warrant had not overlooked privileged material. A28-A29. The court did not resolve the government’s arguments that a former President cannot assert executive privilege to prevent the Executive Branch from reviewing its own records and that any assertion of privilege here would in any event be overcome. A29-A30. Instead, the court stated only that “even if any assertion of executive privilege by Plaintiff ultimately fails,” he should be allowed “to raise the privilege as an initial matter.” A30-A31.

2. The government appealed and sought a partial stay of the order as it applied to records bearing classification markings. D.E. 69. The court denied the motion. A4-A13. The court declined to address the government’s argument that those records are not subject to any plausible claim for return or assertion of privilege, instead referring generally to “factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials.” A7. The court reiterated that its order does not bar the IC’s review and assessment of the records bearing classification markings and suggested that even criminal investigative steps are permitted if they are “truly ... inextricable” from the IC’s activities. A11-A12. But the court gave little further guidance on distinguishing between permitted and prohibited investigative steps.

Finally, the district court confirmed that as part of its special-master review, the government must allow Plaintiff’s counsel to inspect the records bearing classification markings. D.E. 91 at 4. The court directed the master to prioritize review of those records, and directed him to submit all recommendations by November 30, 2022, subject to extensions. Id. at 5.

ARGUMENT

In determining whether to grant a stay pending appeal, this Court considers (1) the likelihood of success on appeal; (2) whether the movant will suffer irreparable injury; (3) the balance of hardships; and (4) the public interest, which merges with harm to the government. Nken v. Holder, 556 U.S. 418, 434-435 (2009); Hand v. Scott, 888 F.3d 1206, 1207 (11th Cir. 2018). “Ordinarily the first factor is the most important.” Garcia- Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). Here, all factors strongly support a partial stay.

I. The government is likely to succeed on the merits as to the records bearing classification markings.

The district court erred in exercising jurisdiction as to the records bearing classification markings. Even if the exercise of jurisdiction were proper, there would be no basis for preventing the government from using its own records. And the court’s suggestion that there are “factual and legal disputes” about the records bearing classification markings, A7, is incorrect and not relevant in any event.

A. The district court erred by exercising jurisdiction as to records bearing classification markings.

1. “In order for an owner of property to invoke Rule 41(g), he must show that he had a possessory interest in the property seized by the government.” United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005). The district court held that Plaintiff had standing because he had made “a colorable showing of a right to possess at least some of the seized property.” A26. But “plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021). Plaintiff lacks standing at least as to the discrete set of records with classification markings because those records are government property, over which the Executive Branch has exclusive control and in which Plaintiff has no property interest. See 44 U.S.C. § 2202; Exec. Order 13,526, § 1.1(2); see also Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).

2. Likewise, the district court’s exercise of equitable jurisdiction regarding an ongoing criminal investigation—which is reserved for “exceptional” circumstances, Hunsucker, 497 F.2d at 32—cannot extend to these records. Under Richey, four factors guide the exercise of that jurisdiction: (1) whether the government has “displayed ‘a callous disregard for the constitutional rights’” of the search’s subject; (2) “whether the plaintiff has an individual interest in and need for the material”; (3) “whether the plaintiff would be irreparably injured by denial of the return of the property”; and (4) “whether the plaintiff has an adequate remedy at law.” 515 F.2d at 1243-44 (citation omitted). None of those factors favors exercising jurisdiction as to the records with classification markings.

On the “[f]irst, and perhaps foremost” factor, id. at 1243, the district court correctly found that Plaintiff has not shown any violation of his rights. A22. The remaining factors apply only to “material whose return [plaintiff] seeks” and to injury resulting from “denial of the return of the property.” Richey, 515 F.2d at 1243. Plaintiff has no right to the “return” of records with classification markings, which are not his property. Id. The district court reasoned that other materials in which Plaintiff might have a cognizable interest cannot readily be separated from those in which he does not. A22. But that rationale is inapplicable to records with classification markings, which are easily identifiable and already segregated from the other seized materials. D.E. 48 at 13.

3. Plaintiff has observed that the PRA generally provides that presidential records from his tenure shall be “available” to him. 44 U.S.C. § 2205(3). But a right to access records in NARA’s custody does not support any claim for the return of records owned by the government. Id. § 2202. And Plaintiff is in any event poorly positioned to invoke the PRA in seeking extraordinary equitable relief because he failed to comply with his PRA obligation to deposit the records at issue with NARA in the first place.

B. The records bearing classification markings are not subject to any plausible claim of privilege that would prevent the government from reviewing and using them.

The district court restrained the government’s review and use of seized materials to allow the special master to consider claims for return of personal property and assertions of attorney-client or executive privilege. None of those rationales applies to the records bearing classification markings: The markings establish on the face of the documents that they are not Plaintiff’s personal property, and neither Plaintiff nor the court has suggested that they might be subject to attorney-client privilege. Plaintiff has never even attempted to make or substantiate any assertion of executive privilege. Even if he did, no such assertion could justify restricting the Executive Branch’s review and use of these records for multiple independent reasons.

1. Executive privilege exists “not for the benefit of the President as an individual, but for the benefit of the Republic.” Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (GSA). Consistent with the privilege’s function of protecting the confidentiality of Executive Branch communications, it may be invoked to prevent the sharing of materials outside the Executive Branch. Cf. Trump v. Thompson, 142 S. Ct. 680, 680 (2022) (per curiam). But neither Plaintiff nor the district court cited any case in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch itself.

To the contrary, in what appears to be the only case in which such an assertion was made, the Supreme Court rejected former President Nixon’s claim that a statute requiring the GSA to review documents and recordings created during his presidency violated executive privilege. GSA, 433 U.S. at 446-55. The Court emphasized that the former President was attempting to assert “a privilege against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. And the Court “readily” rejected that assertion because the review at issue was “a very limited intrusion by personnel in the Executive Branch sensitive to executive concerns.” Id. at 451.

This case similarly involves potential assertions of executive privilege by a former President against “the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. Here, too, review and use of the records in a criminal investigation is a “limited intrusion by personnel in the Executive Branch sensitive to executive concerns.” Id. at 451. And an executive privilege claim would be especially implausible as to records like those at issue here because the Constitution vests the incumbent President, as “head of the Executive Branch and as Commander in Chief,” with the authority “to classify and control access to information bearing on national security.” Egan, 484 U.S. at 527. Accordingly, even if an assertion of privilege might justify withholding the records at issue from Congress or the public, there would be no basis for withholding them from the Executive Branch itself.

2. Even if a former President could assert executive privilege against the Executive Branch’s review and use of its own documents, any such assertion would inevitably fail as to the records bearing classification markings. Executive privilege is qualified, not absolute. In United States v. Nixon, the Supreme Court emphasized that privilege claims “must be considered in light of our historic commitment to the rule of law.” 418 U.S. at 708. The Court thus held that executive privilege “must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Id. at 713; see also In re Sealed Case, 121 F.3d 729, 754-56 (D.C. Cir. 1997) (applying United States v. Nixon in the context of a grand-jury subpoena). This case does not involve a pending trial, but the need for the records bearing classification markings is even more clearly “demonstrated” and “specific”: The government is investigating potential violations of 18 U.S.C. § 793(e), which prohibits unauthorized retention of national defense information. The records here are not merely relevant evidence; they are the very objects of the offense. Similarly, the government’s investigation of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of justice, requires assessing the adequacy of the response to a grand-jury subpoena for all documents in Plaintiff’s possession “bearing classification markings.” A48. Again, the records at issue are central to that investigation.

Even more clearly than in United States v. Nixon, there is no risk that the government’s review of the seized records would chill communications by future presidential advisors. See 418 U.S. at 712 (presidential advisors would not “be moved to temper the candor of their remarks by the infrequent occasions of disclosure” for a “criminal prosecution”). Just the opposite: The government seeks to ensure compliance with laws protecting the confidentiality and proper treatment of sensitive government records—a process that should enhance, rather than undermine, the candor of future presidential communications.

3. Finally, Plaintiff declined to assert executive privilege when his custodian was served with a grand-jury subpoena seeking “[a]ny and all documents or writings” in his custody “bearing classification markings.” A48. Instead, Plaintiff’s counsel produced a set of classified records to the government, and Plaintiff’s custodian certified that “[a]ny and all responsive documents” had been produced after a “diligent search.” A50. Now that the government has discovered more than 100 additional responsive records, Plaintiff cannot claim that those records are shielded from review by a privilege that he failed to assert at the appropriate time.

C. No factual or legal disputes justify the district court’s order as to the records bearing classification markings.

The district court did not identify any basis on which Plaintiff might successfully assert executive privilege—or any other legal ground—to prevent the government from reviewing the records bearing classification markings. Instead, it stated that the specialmaster process is needed to resolve “disputes as to the proper designation of the seized materials.” A7-A8. That is doubly mistaken.

1. Plaintiff has never disputed that the government’s search recovered records bearing classification markings. See A115-A121. Instead, the district court cited portions of Plaintiff’s filings in which he suggested that he could have declassified those documents or purported to designate them as “personal” records under the PRA before leaving office. A7-A8. But despite multiple opportunities, Plaintiff has never represented that he in fact took either of those steps—much less supported such a representation with competent evidence. The court erred in granting extraordinary relief based on unsubstantiated possibilities.

2. In any event, even if Plaintiff had asserted in court that he declassified the records, the government would still need to review the records to assess that claim, and they would still have been responsive to the grand-jury subpoena for all records “bearing classification markings.” A48. Any assertion of executive privilege would thus plainly be overcome under United States v. Nixon because the government would still need to assess the records in investigating possible violations of Sections 793(e) and 1519. And if the records had actually been declassified, the government would have an additional compelling need to understand what had been declassified and why (and who has seen it) to protect intelligence sources and methods.

Similarly, Plaintiff only weakens his case by suggesting that he might have purported to categorize these records as “personal” records under the PRA. Such a categorization would be flatly inconsistent with the statute, which defines “personal records” as those “of a purely private or nonpublic character which do not relate to” the President’s official duties. 44 U.S.C. § 2201(3). And if Plaintiff truly means to assert—implausibly—that records containing sensitive national-security information fit that description, he cannot maintain that the same records are protected by executive privilege—i.e., that they are “Presidential communications” made in furtherance of the “performance of” his official “duties.” United States v. Nixon, 418 U.S. at 705.

II. Absent a partial stay, the government and the public will be irreparably harmed.

The district court’s order irreparably harms the government and the public by (A) interfering with the government’s response to the national-security risks arising from the mishandling and possible disclosure of records bearing classification markings; (B) impairing a criminal investigation into these critical national-security matters; and (C) forcing the government to disclose highly sensitive materials as part of the specialmaster review.

A. By enjoining the review and use of the records bearing classification markings for criminal-investigative purposes, the district court’s order impedes the government’s efforts to protect the Nation’s security. As explained by the Assistant Director who oversees the FBI’s Counterintelligence Division, the Bureau’s national-security and law-enforcement missions cannot be bifurcated without impairing its work. A38-A43. Since the 9/11 attacks, the FBI has integrated its intelligence and law-enforcement functions when it pursues its national-security mission. A41. The FBI’s investigation into mishandling of classified information is thus “an exercise both of the FBI’s criminal investigation authority and of the FBI’s authority to investigate threats to the national security.” Attorney General’s Guidelines for Domestic FBI Operations 6 (2008), https://www.justice.gov/archive/opa/docs/guidelines.pdf. Enjoining criminal investigative activity in this area thus inevitably harms national security.

The district court specified that its order should not interfere with the IC’s “classification review and/or intelligence assessment,” A14, and later clarified that “to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts,” the order “does not enjoin the Government from proceeding with its Security Assessments,” A9. But that is not sufficient. The IC’s review and assessment seek to evaluate the harm that would result from disclosure of the seized records. A40-A41. The court’s injunction restricts the FBI—which has lead responsibility for investigating such matters in the United States—from using the seized records in its criminal-investigative tools to assess which if any records were in fact disclosed, to whom, and in what circumstances.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

Disregarding a sworn declaration from a senior FBI official, the court dismissed such concerns as “hypothetical scenarios” and faulted the government for not identifying an “emergency” or “imminent disclosure of classified information.” A11. But the record makes clear that the materials were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.

Furthermore, although the court purported to leave the IC’s review and assessment undisturbed, those reviews involve DOJ and FBI personnel and are closely tied to the ongoing criminal investigation. A40-A42. The court offered little guidance on how FBI and DOJ personnel should bifurcate their efforts, forcing them to discern that line for themselves on pain of contempt should the court later disagree with their judgments—a threat that will inevitably chill their legitimate activities.

B. The injunction also unduly interferes with the criminal investigation. It prohibits the government from accessing the seized records to evaluate whether charges are appropriate and even from “bringing charges based on” those records. A9. “The notion that a district court could have any input on a United States Attorney’s investigation and decision whether to ... bring a case” is “entirely incompatible with the constitutional assignment to the Executive Branch of exclusive power over prosecutorial decisions.” In re Wild, 994 F.3d 1244, 1287 (11th Cir. 2021) (Tjoflat, J., concurring).  

Moreover, the public has an “interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U.S. 1, 17 (1973); see Cobbledick v. United States, 309 U.S. 323, 325 (1940) (“[E]ncouragement of delay is fatal to the vindication of the criminal law.”). The government’s need to proceed apace is heightened where, as here, it has reason to believe that obstructive acts may impede its investigation. See A108-09 (finding of probable cause for violations of 18 U.S.C. § 1519 and discussing risks of “obstruction of justice”). And the prohibition on review and use of records bearing classification markings is uniquely harmful here, where the criminal investigation concerns retention and handling of those very records.

Finally, requiring disclosure of classified records to a special master and to Plaintiff’s counsel, see D.E. 91 at 4, would impose irreparable harm on the government and public. The Supreme Court has emphasized that courts should be cautious before “insisting upon an examination” of records whose disclosure would jeopardize national security “even by the judge alone, in chambers.” United States v. Reynolds, 345 U.S. 1, 10 (1952). In criminal proceedings, courts have routinely rejected arguments that cleared defense counsel are entitled to classified information without the requisite “need to know”—even after a prosecution has commenced. See, e.g., United States v. Daoud, 755 F.3d 479, 483-85 (7th Cir. 2014) (reversing order requiring disclosure); United States v. Asgari, 940 F.3d 188, 191 (6th Cir. 2019) (similar). Indeed, in the Classified Information Procedures Act (CIPA), 18 U.S.C. App. III, which governs criminal proceedings, Congress aimed “to protect classified information from unnecessary disclosure at any stage of a criminal trial,” United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002), including by permitting the government to move the court ex parte to withhold classified information from the defense, see 18 U.S.C. App. III § 4; United States v. Campa, 529 F.3d 980, 994-96 (11th Cir. 2008). Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought. Because that review serves no possible value, there is no basis for disclosing such sensitive information.

III. A partial stay would impose no cognizable harm on Plaintiff. Allowing the government to use and review the records bearing classification markings for criminal-investigative purposes would not cause any cognizable injury to Plaintiff. Plaintiff has no property or other legal interest in those records. None of the potential harms to Plaintiff identified by the district court, cf. A34, are applicable to those records. Criminal investigators have already conducted an initial review of the records, A19, and the court allowed other government officials to continue to review and use them for national-security purposes. Plaintiff has identified no cognizable harm from merely allowing criminal investigators to continue to review and use this same subset of the seized records.

Plaintiff’s only possible “injury” is the government’s investigation, but that injury is not legally cognizable. “[T]he cost, anxiety, and inconvenience of having to defend against” potential criminal prosecution cannot “by themselves be considered ‘irreparable’ in the special legal sense of that term.” Younger v. Harris, 401 U.S. 37, 46 (1971). That is why courts have exercised great caution before interfering through civil actions with criminal investigations or cases. See id.; see also, e.g., Deaver v. Seymour, 822 F.2d 66, 69-71 (D.C. Cir. 1987); Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993). The district court erred by departing from that fundamental principle of judicial restraint.

CONCLUSION

The district court’s order should be stayed to the extent it (1) enjoins the further review and use for criminal-investigative purposes of the seized records bearing classification markings and (2) requires the government to disclose those records for a special-master review process.

Respectfully submitted,

JUAN ANTONIO GONZALEZ
United States Attorney
Southern District of Florida
99 NE 4th Street, 8th Floor
Miami, FL 33132
305-961-9001

Dated: September 16, 2022

MATTHEW G. OLSEN
Assistant Attorney General
JAY I. BRATT
Chief, Counterintelligence and Export
Control Section
JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW  
Washington, DC 20530
202-233-0986

Counsel for Appellant

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 27(d)(2)(A) because it contains 5,197 words. This brief also complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 27(d)(1)(E) and 32(a)(5)-(6)because it was prepared using Microsoft Word in Garamond 14-point font, a proportionally spaced typeface.

/s/ Juan Antonio Gonzalez
Juan Antonio Gonzalez
United States Attorney

CERTIFICATE OF SERVICE

I hereby certify that on September 16, 2022, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system. Plaintiffs’ counsel was also notified of this motion by email.

/s/ Juan Antonio Gonzalez
Juan Antonio Gonzalez
United States Attorney

_______________

Notes:

1 References to “A__” refer to the Addendum to this motion.

[admin]

Lawyer refused Trump instructions to tell Archives all documents returned
by Rebecca Beitsch
The Hill
October 4, 2022

Correction: Attorney Alex Cannon worked for the Trump campaign after being employed by the Trump Organization. An earlier version of this story misrepresented the nature of his employment.

A former attorney for Donald Trump rebuffed the former president when he asked him to submit a statement to the National Archives earlier this year affirming that all presidential records at Mar-a-Lago had been returned.

The attorney, Alex Cannon, refused, according to multiple reports, because he was not sure such a statement was true.

Cannon was facilitating the return of records to the Archives that had been stretching at that point for nearly a year.

Trump himself eventually packed the 15 boxes that were turned over in January, according to The Washington Post, which first broke the story, before asking Cannon to submit the statement to the Archives.

Cannon, a former Trump Organization attorney who would later work with Trump’s campaign team, reportedly told others he was uncomfortable making such a statement and that Trump staff encouraged him not to do so.

Sources contacted by the Post said Cannon was also hesitant to review the contents of the boxes, as he did not have a security clearance and was unsure if they might contain classified records.

The Trump team ultimately did not send a sworn statement to the Archives and instead released a public statement in February when news of the returned boxes broke, insisting the records were returned in a “friendly” manner.

However, the volume of classified records within the 15 boxes — 184 in total — would ignite a referral to the Department of Justice (DOJ).

The Trump team would later submit a sworn statement to the Justice Department that it had returned all presidential records on the premises after the DOJ issued a subpoena for such records.

In that second production, the Trump team turned over 38 classified records. But again, there appeared to be hesitancy to sign a declaration that all records had been returned. Earlier reporting from The New York Times indicated that Trump attorney Evan Corcoran drafted the statement but handed it to another attorney, Christina Bobb, to sign.

After receiving the statement, the Justice Department would go on to secure a warrant to search Mar-a-Lago, recovering another 100 classified records and some 200,000 pages of presidential records.

A spokesman for Trump bashed both the DOJ and the media in response to the reports.

“Biden’s weaponized DOJ has no greater ally than the fake news media, which seems to only serve as the partisan microphone of leakers and liars buried deep within the bowels of America’s government,” Taylor Budowich said in a statement.

Those documents are now at the center of a legal dispute between the Justice Department and Trump, who has claimed executive privilege allows him to retain the records and secured a victory from a Florida judge who backed his request to have a special master review the evidence.

The DOJ has argued that any presidential records — classified or otherwise — are not Trump’s personal property and he has no right to retain them.

Cannon was reportedly sidelined from dealing with the Archives after failing to sign the statement, and he has since left Trump’s team to work for a D.C.-based law firm. He did not respond to request for comment.

Cannon previously appeared in video clips during the House Jan. 6 committee’s first slate of hearings, telling the panel’s investigators he spoke briefly with Trump ahead of the certification and told him he was not aware of any widespread voter fraud.

“He asked me if we were finding anything. And I said that I didn’t believe we were finding it or I was not personally finding anything sufficient to alter the results of the election. And he — he thanked me. That was our interaction,” Cannon said.

—Updated at 5:03 p.m.

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

Trump asks his lawyer to lie about documents AND Trump asks Supreme Court/Clarence Thomas for help
by Glenn Kirschner
10/5/22

Two related stories just broke. First, the Washington Post reported that Trump asked one of his lawyers to lie: "Trump's lawyer refused his request in February to say all documents returned." The lawyer, Alex Cannon, refused to lie for Trump. And now, Donald Trump is looking for help from the Supreme Court. As Politico reported: "Trump asks Supreme Court to intervene in Mar-a-Lago documents case."

The question remains . . . where is the Department of Justice? Why has Trump not been held accountable for a single crime?

This video exposes those questions.



Transcript

so two new stories broke, friends. both
involving Donald Trump trying to get
away with his classified documents
crimes.
let's talk about that.
because Justice matters.
hey all. Glenn kirschner here. so let's
take on two related stories, both stories
involve Donald Trump asking for favors,
though
first let's take a look at what Donald
Trump asked one of his lawyers to do.
headline: Trump's lawyer refused his
request in February to say all documents
returned after initial return of 15
boxes. attorney Alex Cannon thought there
might be more records at Mar-A-Lago,
people familiar with the matter said.
former president Donald Trump asked one
of his lawyers to tell the National
Archives and Records Administration in
early 2022 that Trump had returned all
materials requested by the agency,
but the lawyer declined because he was
not sure the statement was true,
according to people familiar with the
matter.
as it turned out, thousands more
government documents, including some
highly classified Secrets, remained at
Trump's Mar-A-Lago residence and private
club.
the later discovery of those documents
through a May grand jury subpoena, and
the August 8 FBI search of the Florida
property, are at the heart of a criminal
investigation into the potential
mishandling of classified material, and
the possible hiding, tampering, or
destruction of government records.
now friends, let's not dance around this.
let's not use gentle euphemisms. Donald
Trump asked one of his lawyers to lie
to cover up his crimes,
to facilitate his unlawful retention and
concealment of government documents of
classified information of top secret
materials,
of information about the nuclear weapons
programs of foreign countries.
when will Donald Trump be held
accountable for his crimes?
and another story broke today, friends,
after Donald Trump asked one of his
lawyers to lie for him about the
documents he stole from the government
and unlawfully concealed at Mar-A-Lago.
now Donald Trump is asking the Supreme
Court to help him out.
here's today's reporting from Politico.
headline: Trump asks Supreme Court to
intervene in Mar-A-Lago documents case.
Trump's request would put about 100
potentially classified documents back
into the special Master review.
former president Donald Trump is asking
the Supreme Court to intervene in the
fight over records the FBI seized from
his Florida home as part of an
investigation into alleged retention of
classified information, theft of
government documents, and obstruction of
justice.
lawyers for Trump asked Justice Clarence
Thomas on Tuesday to issue an emergency
order that would restore an outside
reviewer's authority over about 100
documents with classification markings
found at Trump's Mar-A-Lago estate
during the August 8 search. such a move
would make it easier for Trump to
continue to pursue claims that those
documents, some marked top secret, or with
even more restrictive classifications,
should not be in the hands of the
justice department investigators.
you know, maybe Donald Trump should just
tell Justice Thomas that, you know what?
I've got a bunch of your wife's emails
in those boxes, in those documents that I
was keeping at Mar-A-Lago before the FBI
took them from me. so, Justice Thomas, you
know, you might want to seriously
consider granting review of this case.
you know, when will Donald Trump be held
accountable for his crimes -- obvious
crimes, transparent crimes, dangerous
crimes,
the kind of crimes that if it were you
or if it were me, we would already be
cooling our heels in a jail cell?
when will Donald Trump be held
accountable,
Department of Justice?
heck, it's one of the three words in the
name of your organization: "Department of" --.
you know,
when
we're waiting.
we've seen the crimes.
we know you all have the evidence.
a federal judge has already announced
that there's more than enough evidence
to charge him,
to indict him.
when?
because Justice still matters.
it still matters,
as long as we're living in a democracy.
it still matters,
Department of --
you know --
Justice!
friends,
please stay safe, please stay tuned,
and I look forward to talking with you
all again
tomorrow.
[Music]

[admin]

Trump wanted to trade Mar-a-Lago files for ‘sensitive’ documents about 2016 Russia probe: report: Trump plotted to exchange classified documents for the FBI’s files on the investigation into his ties to Russia, a New York Times report claims
by Bevan Hurley
independent.co.uk
10/9/22

-- Our Man in London: The Scandal of the 35-Page ‘Intelligence Dossier’ Directed against Donald Trump, by Prof Michael Keefer

Former president Donald Trump tried to make a deal with the National Archive to trade classified documents he took to Mar-a-Lago in exchange for files that he believed would prove a 2016 investigation into his ties to Russia was a “hoax”, according to a new report.

In a piece published on Saturday, The New York Times claimed that Mr Trump discussed the deal with his advisers last year as the National Archives increased pressure on him to return a cache of top secret documents he took when he left the White House.

Mr Trump’s aides did not pursue the deal, The Times’ report notes, but adds that the former president repeatedly urged them to lie about what was in the trove of documents he was hiding at Mar-a-Lago.

After 18 months of negotiations between Mr Trump and the National Archive and Department of Justice to return the documents, the FBI raided Mar-a-Lago in August and confiscated several boxes of material.

It was later reported that the files included top secret information about a foreign nation’s nuclear programme.

On Friday, Rolling Stone reported that FBI special agents had interviewed several witnesses as part of efforts to determine if Mr Trump had hidden classified or sensitive government documents at his Trump Tower home and office or his golf club in Bedminster, New Jersey.

Per The Times, the National Archives’ top lawyer Gary Stern repeatedly pressed Mr Trump during 2021 to return two dozen boxes of presidential records that he had been holding in his private residence at the White House.

Mr Trump’s attorneys tried to assure Mr Stern that the boxes contained “nothing of consequence”, The Times writes.

Mr Trump “floated” the idea of exchanging the records for information that would “expose” the 2016 FBI investigation into his campaign’s ties to Russia.

However, his aides didn’t act on the suggestion as they knew that the government was entitled to have the files returned, The Times notes.

The Times also states that Mr Trump and his aides did not tell the archives lawyers that the boxes contained classified information, instead claiming it contained material such as newspaper clippings.

Neither Mr Trump or any of his representatives informed the archives that the files contained classified information, the report states. It was only when they came to Mar-a-Lago in January to collect 15 boxes of material that they became aware of the sensitive nature of the files, The Times states.

They then alerted the Justice Department, who launched an investigation into mishandling of classified documents.

Mr Trump has reportedly been obsessed with punishing his perceived enemies at the Justice Department over their investigation into his business dealings and campaign ties to Russia in the lead up to the 2016 election.

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

How Trump Deflected Demands for Documents, Enmeshing Aides: The former president exhibited a pattern of dissembling about the material he took from the White House, creating legal risk not just for himself but also some of his lawyers.
by Maggie Haberman and Michael S. Schmidt
New York Times
Oct. 8, 2022

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Late last year, as the National Archives ratcheted up the pressure on former President Donald J. Trump to return boxes of records he had taken from the White House to his Mar-a-Lago club, he came up with an idea to resolve the looming showdown: cut a deal.

Mr. Trump, still determined to show he had been wronged by the F.B.I. investigation into his 2016 campaign’s ties to Russia, was angry with the National Archives and Records Administration for its unwillingness to hand over a batch of sensitive documents that he thought proved his claims.

In exchange for those documents, Mr. Trump told advisers, he would return to the National Archives the boxes of material he had taken to Mar-a-Lago, in Palm Beach, Fla.

Mr. Trump’s aides never pursued the idea. But the episode is one in a series that demonstrates how Mr. Trump spent a year and a half deflecting, delaying and sometimes leading aides to dissemble when it came to demands from the National Archives and ultimately the Justice Department to return the material he had taken, interviews and documents show.

That pattern was strikingly similar to how Mr. Trump confronted inquiries into his conduct while in office: entertain or promote outlandish ideas, eschew the advice of lawyers and mislead them, then push lawyers and aides to impede investigators.

In the process, some of his lawyers have increased their own legal exposure and had to hire lawyers themselves. And Mr. Trump has ended up in the middle of an investigation into his handling of the documents that has led the Justice Department to seek evidence of obstruction.

The path began well before Mr. Trump left office.

Concern about Mr. Trump’s habit of bringing documents to his White House bedroom began not long after he took office. By the second year of his administration, tracking the material he had in the residence had become a familiar obstacle, according to people familiar with his practices, and by the third year, there were specific documents that West Wing officials knew were not where they should be.

In the closing weeks of his presidency, the White House counsel, Pat A. Cipollone, flagged the need for Mr. Trump to return documents that had piled up in boxes in the White House residence, according to archives officials.

“It is also our understanding that roughly two dozen boxes of original presidential records were kept in the residence of the White House over the course of President Trump’s last year in office and have not been transferred to NARA, despite a determination by Pat Cipollone in the final days of the administration that they need to be,” Gary M. Stern, the top lawyer for the National Archives, told Mr. Trump’s representatives in a 2021 letter, using an abbreviation for the agency’s name.

Mr. Stern added that he had raised his concerns about the issue with another top White House lawyer in the final weeks of the administration.

More on the Trump Documents Inquiry

Documents Still Missing?: A top Justice Department official told former President Donald J. Trump’s lawyers in recent weeks that the agency believed he had not returned all the records he took when he left the White House, according to two people briefed on the matter.

Deflecting Demands: Mr. Trump spent a year and a half deflecting, delaying and sometimes leading aides to dissemble when it came to demands from the National Archives and the Justice Department to return the material he had taken, interviews and documents show.

Supreme Court Request: Mr. Trump asked the justices to intervene in the litigation over sensitive documents that the F.B.I. seized from his Florida estate, saying that an appeals court had lacked jurisdiction to remove them from a special master’s review.

Dueling Judges: The moves and countermoves by a federal judge and the special master she appointed reflect a larger struggle over who should control the rules of the review of the documents seized from Mar-a-Lago.

Mr. Stern acknowledged to Mr. Trump’s representatives the complications that had come with the abrupt end of Mr. Trump’s term. “We know things were very chaotic, as they always are in the course of a one-term transition,” he wrote. “This is why the transfer of the Trump electronic records is still ongoing and won’t be complete for several more months. But it is absolutely necessary that we obtain and account for all original presidential records.”

Throughout 2021, Mr. Stern doggedly pressed Mr. Trump’s representatives to have him hand over the boxes.

Mr. Stern went back and forth about the issue with the people Mr. Trump had originally designated to represent him in dealing with the archives — among them Mark Meadows, the former White House chief of staff, and three lawyers who had worked in the White House Counsel’s Office.

In September 2021, as Mr. Stern increased the pressure on Mr. Trump to return the boxes, Mr. Trump told Mr. Meadows that there were about a dozen boxes that had been taken from the White House but that they only contained newspaper clippings and personal effects, according to three people briefed on the matter. (To some aides, Mr. Trump claimed that the contents of the boxes included dirty laundry.)

Mr. Meadows shared Mr. Trump’s characterization of the contents of the boxes with Patrick Philbin, another of Mr. Trump’s representatives to the archives and a former White House lawyer. Mr. Philbin in turn relayed the message — which months later would prove to be false — to Mr. Stern.

But archives officials made clear that even newspaper clippings and printouts of articles seen by Mr. Trump in office were considered presidential records. The archives often found personal effects among the materials presidents turned in, and the archives would send them back to Mr. Trump if they ever found any.

Still, Mr. Trump returned no boxes.

By the fall, Mr. Stern was growing increasingly frustrated and dealing with Alex Cannon, a lawyer who had worked for the Trump Organization, the 2020 campaign and then Mr. Trump’s political action committee. Mr. Cannon had also been involved in responding to requests for documents from the congressional committee investigating the Jan. 6, 2021, attack on the Capitol.

In a conversation in late October or early November of last year, Mr. Stern told Mr. Cannon that he had tried other avenues for retrieving the documents and failed. He acknowledged that the Presidential Records Act did not contain an enforcement mechanism but suggested that the archives had options, including the ability to ask the attorney general to assist in retrieving the documents, according to people briefed on the discussions.

Mr. Cannon told Mr. Stern that the documents would be returned by the end of the year, the people said.

Around that time, Mr. Cannon, who told others he worried the boxes might contain documents that were being sought in the Jan. 6 inquiry, called Mr. Trump, who insisted that the boxes contained nothing of consequence.

Nonetheless, Mr. Cannon told associates that the boxes needed to be shipped back as they were, so the professional archivists could be the ones to sift through the material and set aside what they believed belonged to Mr. Trump. What is more, Mr. Cannon believed there was the possibility that the boxes could contain classified material, according to two people briefed on the discussions, and none of the staff members in Mr. Trump’s presidential office at Mar-a-Lago had proper security clearances.

It was around that same time that Mr. Trump floated the idea of offering the deal to return the boxes in exchange for documents he believed would expose the Russia investigation as a “hoax” cooked up by the F.B.I. Mr. Trump did not appear to know specifically what he thought the archives had — only that there were items he wanted.

Mr. Trump’s aides — recognizing that such a swap would be a non-starter since the government had a clear right to the material Mr. Trump had taken from the White House and the Russia-related documents held by the archives remained marked as classified — never acted on the idea.

A spokesman for Mr. Trump did not respond to a request for comment. A representative for the archives did not respond to a request for comment. Mr. Cannon declined a request for comment.

By the end of last year, a former adviser to Mr. Trump in the White House, a lawyer named Eric Herschmann, warned him that he could face serious legal ramifications if he did not return government materials he had taken with him when he left office. Mr. Herschmann told Mr. Trump that the consequences could be greater if some of the documents were classified.

Finally, after telling advisers repeatedly that the boxes were “mine,” Mr. Trump consented to go through them, which his associates said he did in December. Mr. Stern was alerted that the boxes were ready for retrieval.

But neither Mr. Trump nor any of his representatives informed Mr. Stern that they contained classified information. In January, the agency arranged for a contractor with a truck to go to Mar-a-Lago to pick up the boxes — which totaled 15, three more than the agency thought Mr. Trump had taken from the White House — and drive them to the Washington area.

Not knowing that the boxes contained classified information, agency personnel began opening the boxes in a room that did not meet government standards for handling secret materials. When they realized the sensitivity of the material, they quickly moved the boxes to specially secured areas, where their contents could be more closely examined.

Shortly thereafter, the National Archives alerted the Justice Department that classified materials may have been mishandled, leading federal authorities to open an investigation.

Around the time the archives retrieved the boxes, officials at the archives became skeptical that Mr. Trump had returned everything and made clear they believed there was more in his possession.

Mr. Trump told Mr. Cannon last winter to tell the archivists that he had returned everything. Mr. Cannon, concerned about making such a definitive statement to federal officials, refused to do so.

Their relationship ultimately became strained over the issue. Mr. Trump has told several advisers that he blames Mr. Cannon for the entire situation because the lawyer told him to give records back, while informal advisers like Tom Fitton, who runs the conservative group Judicial Watch but is not a lawyer, suggested Mr. Trump could claim the documents were personal records and hang on to them.

By the spring, a grand jury investigation had begun, and by June, the Justice Department was moving full steam ahead with the investigation, having issued a subpoena for any remaining classified material.

In a face-to-face meeting at Mar-a-Lago on June 3 between one of Mr. Trump’s lawyers, Evan Corcoran, and a top Justice Department official overseeing the investigation, Jay I. Bratt, the lawyer returned another set of documents in response to the subpoena.

Another Trump lawyer, Christina Bobb, then signed a statement on behalf of Mr. Trump saying that “based upon the information that has been provided to me,” all documents responsive to the subpoena were being returned after a “diligent” search.

Yet two months later, during the Aug. 8 search of Mar-a-Lago, the F.B.I. found more than twice as many documents marked as classified as had been turned over in June, including some in Mr. Trump’s office. The F.B.I. also found dozens of empty folders marked as having contained classified information. Among the crimes that the search warrant said the authorities might find evidence of was obstruction.

Ms. Bobb has hired a criminal defense lawyer and signaled a willingness to answer questions from the Justice Department.

In the aftermath of the search, investigators remained skeptical that they had retrieved all the documents and, in recent weeks, a top Justice Department official told Mr. Trump’s lawyers that the department believed he had still not returned all the documents he took when he left the White House, according to people familiar with the discussions.

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

Michael S. Schmidt is a Washington correspondent covering national security and federal investigations. He was part of two teams that won Pulitzer Prizes in 2018 — one for reporting on workplace sexual harassment and the other for coverage of President Trump and his campaign’s ties to Russia. @NYTMike

A version of this article appears in print on Oct. 9, 2022, Section A, Page 24 of the New York edition with the headline: How Trump Deflected Demands for Boxes of Documents, Enmeshing Aides.

[admin]

Response in Opposition to the Application to Vacate in Part the Partial Stay Issued by the United States Court of Appeals for the Eleventh Circuit
by Elizabeth B. Prelogar
Solicitor General
Department of Justice
Donald J. Trump, Applicant, v. United States of America
October, 2022

IN THE SUPREME COURT OF THE UNITED STATES

DONALD J. TRUMP, APPLICANT
v.
UNITED STATES OF AMERICA

RESPONSE IN OPPOSITION TO THE APPLICATION TO VACATE IN PART THE PARTIAL STAY ISSUED BY THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217

PARTIES TO THE PROCEEDING

All parties to the proceeding appear in the caption to this case. See Sup. Ct. R. 24.1(b).

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

Trump v. United States, No. 22-cv-81294 (Sept. 5, 2022) (order granting preliminary injunction and providing that a special master shall be appointed)

United States v. Sealed Search Warrant, No. 22-mj-8332 (Aug. 5, 2022) (issuing search warrant)

United States Court of Appeals (11th Cir.):

Trump v. United States, No. 22-13005 (Sept. 21, 2022) (granting partial stay)

IN THE SUPREME COURT OF THE UNITED STATES

No. 22A283

DONALD J. TRUMP, APPLICANT
v.
UNITED STATES OF AMERICA

RESPONSE IN OPPOSITION TO THE APPLICATION TO VACATE IN PART THE PARTIAL STAY ISSUED BY THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

The Solicitor General respectfully files this response in opposition to the application for a partial vacatur of the Eleventh Circuit’s order partially staying the September 5, 2022 order of the United States District Court for the Southern District of Florida.

This application concerns an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review. In August 2022, the government obtained a warrant to search the residence of applicant, former President Donald J. Trump, based on a judicial finding of probable cause to believe that the search would reveal evidence of crimes, including wrongful retention of documents and information relating to the national defense as well as obstruction of justice. Among other evidence, the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution.

Two weeks later, applicant filed this civil action seeking the appointment of a special master to review the seized materials for claims of privilege or return of property and an injunction barring the government from continuing to use those materials during that review process. District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are ordinarily resolved through criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief applicant sought, ordering that a “special master shall be APPOINTED to review the seized property” and enjoining further review or use of any seized materials “for criminal investigative purposes” pending the special-master process, which will last months. Appl. for Partial Vacatur App. (App.) B at 23.1.

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief at all -- and is appealing the court’s September 5 order in its entirety on an expedited basis -- the government sought only a partial stay of the portions of that order that caused the most serious and immediate harm to the United States and the public by “enjoin[ing] the government’s use of the classified documents and requir[ing] the government to submit the classified documents to the special master for review.” App. A at 29. The court of appeals granted that modest relief, holding that “the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over [applicant’s] motion as it concerns the classified documents” and that all of the equitable factors favored a partial stay. Id. at 22; see id. at 15-29.

In this Court, applicant does not challenge the stay insofar as it reinstates the government’s authority to use the documents bearing classification markings in its ongoing criminal investigation. Applicant instead seeks to partially vacate the stay to the extent it precludes dissemination and review of those documents in the special-master proceedings. Applicant is not entitled to that relief for multiple independent reasons.

Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal. Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court. Indeed, applicant does not challenge the court of appeals’ determinations that applicant will suffer no meaningful harm from the limited stay, App. A at 27-28; that the government would have been irreparably injured absent a stay, id. at 23-27; and that the public interest favors a stay, id. at 28-29. As the court explained, “allowing the special master and [applicant’s] counsel to examine the classified records” would irreparably injure the government because “for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’” Id. at 27 (quoting Department of the Navy v. Egan, 484 U.S. 518, 529 (1988)). In addition, applicant has not shown that the court of appeals erred -- much less “clearly and demonstrably erred” -- in issuing a partial stay. Planned Parenthood v. Abbott, 571 U.S. 1061, 1061 (2013) (Scalia, J., concurring in denial of application to vacate stay) (citation and internal quotation marks omitted). The district court appointed the special master to review claims of privilege and for the return of personal property, see App. B at 23, but applicant has no plausible claim of privilege in or ownership of government records bearing classification markings. As the court of appeals recognized, applicant thus has no basis to demand special-master review of those records. App. A at 18-19. Applicant does not acknowledge, much less attempt to rebut, the court’s careful analysis of those issues.

Instead, applicant principally asserts (Appl. 9-29) that although the court of appeals had jurisdiction to stay the district court’s injunction, it lacked jurisdiction to stay the special master’s review. That is wrong for three independent reasons. First, the court of appeals correctly held that it had pendent jurisdiction to address the special master’s review because the injunction -- which precluded the government’s use of the documents “pending resolution of the special master’s review,” App. B at 23 -- is “inextricably intertwined” with that review, App. A at 15 n.3 (citation omitted). Second, 28 U.S.C. 1292(a)(1) grants appellate jurisdiction to review “nterlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions” (emphasis added). [i]Appellate jurisdiction thus lies over the entire order granting an injunction, as this Court has held in interpreting other statutes granting jurisdiction to review particular types of “orders.” See, e.g., BP p.l.c. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532, 1537-1538 (2021). Here, the district court’s September 5 order not only granted an injunction, but also provided that a “special master shall be APPOINTED to review the seized property,” including the records bearing classification markings. App. B at 23. Third, a directive compelling the Executive Branch to disclose information that is classified or otherwise implicates national security is itself immediately appealable as a collateral order. Cf. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 n.4 (2009).

The court of appeals thus correctly held that it had appellate jurisdiction to review and stay the portion of the September 5 order that requires the government to turn over the documents bearing classification markings for special-master review. And even if there were some doubt on that score, applicant certainly cannot establish the clear error required to justify the relief he seeks -- particularly because he does not acknowledge, much less attempt to rebut, the court of appeals’ conclusion that the district court’s order was a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of extraordinarily sensitive government records. The application should be denied.

STATEMENT

A. Statutory And Factual Background

1. Applicant’s term of office ended in January 2021. Over the next year, the National Archives and Records Administration (NARA) endeavored to recover what appeared to be missing records subject to the Presidential Records Act of 1978 (PRA), Pub. L. No. 95-591, 92 Stat. 2523 (44 U.S.C. 2201 et seq.). App. A at 3-4; App. D at A44. The PRA provides that the United States retains “complete ownership, possession, and control of Presidential records,” 44 U.S.C. 2202, which the law defines to include all records “created or received by the President” or his staff “in the course of conducting activities which relate to or have an effect upon” the President’s official duties, 44 U.S.C. 2201(2). The PRA specifies that when a President leaves office, NARA “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” 44 U.S.C. 2203(g)(1).

In response to repeated requests from NARA, applicant ultimately provided NARA with 15 boxes of records in January 2022. App. D at A44 (May 10, 2022 letter from NARA to applicant’s counsel). NARA discovered that the boxes contained “items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.” Ibid.; see App. A at 3. Material is marked as Top Secret if its unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage” to national security. Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. 707, 707 (Jan. 5, 2010). Sensitive Compartmented Information and Special Access Program material are subject to additional restrictions. Special Access Programs, for example, may be created only by cabinet-level officials or their deputies and must be based on “a specific finding” that “the vulnerability of, or threat to, specific information is exceptional.” § 4.3(a)(1), 75 Fed. Reg. at 722.

NARA referred the matter to the Department of Justice (DOJ), noting that highly classified records appeared to have been improperly transported and stored. App. D at A63-A64 (affidavit in support of search warrant). DOJ then sought access to the 15 boxes under the PRA’s procedures governing presidential records in NARA’s custody. Id. at A44-A45; see 44 U.S.C. 2205(2)(B). After receiving notification of that request, applicant neither attempted to pursue any claim of privilege in court, see 44 U.S.C. 2204(e), nor suggested that any documents bearing classification markings had been declassified. App. A at 4; App. D at A45.

2. The FBI developed evidence that additional boxes remaining at applicant’s residence at the Mar-a-Lago Club in Palm Beach, Florida, were also likely to contain classified information. On May 11, 2022, applicant’s counsel was served with a subpoena issued by a grand jury in the District of Columbia for “[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.” App. D at A48 (subpoena).

In response, applicant’s counsel and his custodian of records produced an envelope containing approximately three dozen documents bearing classification markings. App. D at A76-A77. Applicant did not assert any claim of privilege and did not suggest that any of those documents had been declassified. App. A at 5. To the contrary, the envelope had been wrapped in tape in a manner “consistent with an effort to handle the documents as if they were still classified.” App. D at A78. Some of the documents in the envelope bore classification markings at the highest levels, including additional compartmentalization. Id. at A77. Applicant’s counsel represented that those records had been retrieved from a storage room at Mar-a-Lago, where boxes removed from the White House had been placed, and that no responsive records were located anywhere else at Mar-a-Lago. App. D at A76-A77. Applicant’s custodian provided a sworn certification in writing “on behalf of the Office of Donald J. Trump” that a “diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification.” Id. at A50. The certification further stated that “[n]o copy, written notation, or reproduction of any kind was retained as to any responsive document.” Ibid.

3. The FBI uncovered evidence that the response to the grand jury subpoena was incomplete, that additional classified documents likely remained at Mar-a-Lago, and that efforts had likely been undertaken to obstruct the investigation. The government applied to a magistrate judge for a search warrant, citing 18 U.S.C. 793 (willful retention of national defense information), 18 U.S.C. 2071 (concealment or removal of government records), and 18 U.S.C. 1519 (obstruction). App. D at A54. The magistrate judge found probable cause that evidence of those crimes would be found at Mar-a-Lago and authorized the government to seize, among other things, “[a]ny physical documents with classification markings, along with any containers/boxes * * * in which such documents are located.” Id. at A98; see id. at A96-A98 (warrant and attachments). The magistrate judge also approved the government’s proposed filter protocols for handling any materials potentially subject to personal attorney-client privilege. Id. at A87-A88.

The government executed the warrant on August 8, 2022. The search recovered more than 11,000 documents from the storage room and applicant’s private office, roughly 100 of which bore classification markings, with some indicating the highest levels of classification and extremely restricted distribution. App. B at 4 & n.4; see App. D at A51 (photograph); App. G (inventory). In some instances, even FBI counterintelligence personnel required additional clearances to review the seized documents. D. Ct. Doc. 48, at 12-13 (Aug. 30, 2022).

B. Proceedings Below

1. Two weeks after the search, applicant filed a pleading styled as a “Motion for Judicial Oversight and Additional Relief” asking the district court to appoint a special master to adjudicate potential claims of executive and attorney-client privilege, to enjoin the government from further review and use of the seized documents, and to order the government to return certain property under Federal Rule of Criminal Procedure 41(g). See D. Ct. Doc. 1, at 1-21 (Aug. 22, 2022).

On September 5, 2022, the district court granted applicant’s motion in part, directing that a “special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property,” with the “exact details and mechanics of this review process [to] be decided expeditiously following receipt of the parties’ proposals.” App. B at 23. “[P]ending resolution of the special master’s review,” the court enjoined the government from “further review and use” of the seized materials “for criminal investigative purposes,” but stated that the government may continue to review and use those materials “for purposes of intelligence classification and national security assessments.” Id. at 23-24. The court explained that the injunction was issued “in natural conjunction with th[e] appointment [of the special master], and consistent with the value and sequence of special master procedures.” Id. at 1.

The district court denied the government’s subsequent motion for a partial stay of the September 5 order as it applied to the records bearing classification markings. App. D at A4-A13. The court declined to address the government’s argument that special-master review is unnecessary and unwarranted with respect to that discrete set of records because they are government records not subject to any plausible claim for return or assertion of privilege. Instead, the court referred generally to “factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials.” Id. At A7. And the court reiterated that the injunction preventing the government from using the seized records for investigative purposes was necessary “to uphold the value of the special master review.” Id. At A32.

2. The court of appeals granted a stay of the order “to the extent it enjoins the government’s use of the classified documents and requires the government to submit the classified documents to the special master for review.” App. A at 29. The court observed that it had appellate jurisdiction to review the injunction under 28 U.S.C. 1292(a)(1), App. A at 15, and rejected applicant’s contention that it lacked jurisdiction over the special-master portion of the district court’s order, id. At 15 n.3. The court of appeals noted that the injunction expressly applied “‘pending completion of the special master’s review’” and “‘in natural conjunction with the appointment of the special master.’” Ibid. (brackets and citation omitted). And the court explained that “pendent jurisdiction” would allow it to review even “an otherwise nonappealable order” where, as here, “it is inextricably intertwined with an appealable decision.” Ibid.

The court of appeals then held that the government had satisfied the traditional standard for a stay set forth in Nken v. Holder, 556 U.S. 418 (2009). App. A at 15-16. The court concluded that the government “is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over [applicant’s] motion as it concerns the classified documents.” Id. at 22; see id. at 16-22. Among other things, the court of appeals emphasized the district court’s conclusion that the government did not engage in the sort of “callous disregard” for constitutional rights that circuit precedent makes an “indispensable” prerequisite for an exercise of equitable jurisdiction in this context. Id. at 17 (citation omitted). Applicant did not dispute that conclusion -- indeed, his filings in the court of appeals did not even allege that the search violated the Fourth Amendment.

The court of appeals also found that the government would suffer irreparable injury absent a stay. Crediting an affidavit from a senior FBI official, the court concluded that “an injunction delaying (or perhaps preventing) the United States’s criminal investigation from using classified materials risks imposing real and significant harm on the United States and the public,” including risks to national security. App. A at 26-27. The court also concluded that “allowing the special master and [applicant’s] counsel to examine the classified records” would needlessly jeopardize “the long-recognized ‘compelling interest in protecting the secrecy of information important to our national security.’” Id. at 27 (citation and ellipsis omitted). The court further held that applicant had not shown that he would suffer substantial injury from a “limited” stay applicable only to the records bearing classification markings and that the public interest favored a partial stay pending appeal. Id. at 28-29.

3. Meanwhile, before the district court denied a stay, it had issued a September 15, 2022 order (App. C at 1-8) appointing Judge Raymond J. Dearie as the special master and providing the promised “details and mechanics of th[e] review process,” App. B at 23. After the court of appeals entered the stay, the district court sua sponte modified the September 15 order by deleting the portions of that order addressing review of the records bearing classification markings. D. Ct. Doc. 104, at 1 (Sept. 22, 2022).

4. After the court of appeals granted the stay, it also granted the government’s motion to expedite the appeal, which applicant had opposed. Briefing is set to be complete by November 17, 2022. 10/5/22 C.A. Order. Meanwhile, the government’s investigation is ongoing, as is a national security review and assessment being coordinated by the Office of the Director of National Intelligence, see App. D at A40-A42.

ARGUMENT

Applicant seeks to vacate the partial stay entered by the court of appeals to the extent it precludes review of the documents bearing classification markings in the special-master proceedings. The application should be denied. “A stay granted by a court of appeals is entitled to great deference from this Court.” Garcia-Mir v. Smith, 469 U.S. 1311, 1313 (1985) (Rehnquist, J., in chambers). Vacatur of such a stay is appropriate only when (1) the case “very likely would be reviewed [by this Court] upon final disposition in the court of appeals”; (2) “the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay”; and (3) applicant’s rights “may be seriously and irreparably injured by the stay.” Western Airlines, Inc. v. International Brotherhood of Teamsters, 480 U.S. 1301, 1305 (1987) (O’Connor, J., in chambers) (citation omitted); see Valentine v. Collier, 140 S. Ct. 1598, 1598 (2020) (Sotomayor, J., respecting the denial of application to vacate stay); Planned Parenthood v. Abbott, 571 U.S. 1061, 1061 (2013) (Scalia, J., concurring in denial of application to vacate stay). None of those requirements is satisfied here.

I. THIS COURT WOULD NOT LIKELY GRANT REVIEW IF THE COURT OF APPEALS REVERSED THE DISTRICT COURT’S ORDER

Applicant makes little effort to show that this Court would likely grant review if the court of appeals reversed the district court’s order enjoining the government from using the documents bearing classification markings pending a special master’s review. Cf. Appl. 9-10. Indeed, the application does not even address the court of appeals’ reasoning supporting its conclusion that the government is substantially likely to succeed on the merits. Instead, applicant focuses almost entirely on the assertion that the court lacked jurisdiction to stay the special master’s review. But the jurisdictional question presented here arises from the unusual -- indeed, unprecedented -- order entered by the district court, and is therefore unlikely to recur. And applicant does not contend that a decision by the court of appeals exercising jurisdiction and reversing that order would conflict with any decision of another court of appeals or otherwise satisfy this Court’s traditional certiorari standards.

II. APPLICANT HAS NOT SHOWN THAT THE COURT OF APPEALS CLEARLY AND DEMONSTRABLY ERRED IN GRANTING A STAY

A. The Court Of Appeals Did Not Clearly And Demonstrably Err In Exercising Appellate Jurisdiction

Applicant recognizes (Appl. 3 n.3) that the court of appeals had jurisdiction to review the portion of the district court’s September 5 order enjoining the government’s use of the documents bearing classification markings, and he does not challenge that portion of the stay. Instead, he argues (Appl. 9-29) only that the court of appeals lacked jurisdiction to stay the September 5 order “to the extent it * * * requires the government to submit the classified documents to the special master for review.” App. A at 29. 3 That argument lacks merit for three independent reasons: (1) the court had pendent jurisdiction to address the special-master review that formed the predicate for the injunction; (2) the court had jurisdiction to review the entire September 5 order under 28 U.S.C. 1292(a)(1); and (3) the court had jurisdiction under the collateral-order doctrine to review the directive to disclose classified documents in the special-master proceedings.

1. The court of appeals had pendent jurisdiction

The court of appeals correctly recognized (App. A at 15 n.3) that it had pendent jurisdiction to address the special-master review to which the injunction was expressly tied. Pendent appellate jurisdiction permits review of an otherwise non-appealable issue if it is “‘inextricably intertwined with’ or ‘necessary to ensure meaningful review of’” an immediately appealable ruling. Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 531 (2021) (citation omitted). For example, in Clinton v. Jones, 520 U.S. 681 (1997), this Court held that because the appellate court had jurisdiction to review the district court’s denial of a motion to dismiss on presidential immunity grounds, it had pendent jurisdiction to review the district court’s ruling staying trial. Id. at 707 n.41. Likewise, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court affirmed appellate jurisdiction to review the denial of a motion to dismiss for failure to state a claim pendent to the denial of qualified immunity. Id. at 673 (citing other cases).

The injunction here is an immediately appealable ruling under 28 U.S.C. 1292(a)(1), as applicant acknowledges. Appl. 3 n.3. But the injunction expressly applies only “pending resolution of the special master’s review.” App. B at 23. The district court itself explained that it issued the injunction “in natural conjunction with th[e] appointment [of the special master], and consistent with the value and sequence of special master procedures.” Id. at 1. And the court reiterated that it viewed the injunction as necessary “to uphold the value of the special master review.” App. D at A32. The special-master review is thus inextricably intertwined with the injunction because it was the very predicate for the injunction. See Jones, 520 U.S. at 707 n.41.

Applicant asserts that the two are not inextricably intertwined because resolution of the propriety of the injunction “does not ‘necessarily resolve’ the Special Master issue.” Appl. 25; see Appl. 24-25. But that conflates “inextricably intertwined” with the disjunctive “necessary to ensure meaningful review” path to pendent jurisdiction. Whole Woman’s Health, 142 S. Ct. at 531 (citation omitted). And in any event, the assertion is incorrect. In staying the injunction, the court of appeals concluded that the district court likely abused its discretion in even entertaining applicant’s motion as to the records bearing classification markings -- a conclusion that necessarily dictates that the special-master review of those records is improper. App. A at 16-22. The government has also argued that the injunction is unwarranted precisely because the special-master review process is unnecessary with respect to the documents bearing classification markings, over which applicant has no plausible claim of privilege or for return. App. D at 12-17. Again, that argument necessarily resolves not just the validity of the injunction, but also the propriety of the special-master review to which the injunction is expressly tied.

Applicant also contends (Appl. 21-22 & n.12) that pendent appellate jurisdiction is available only in cases where the appealable order is the denial of an immunity defense. But this Court has never articulated such a limitation. See Whole Woman’s Health, 142 S. Ct. at 531; Iqbal, 556 U.S. at 673; Jones, 520 at 707 n.41.4 Nor is there any sound basis to limit pendent jurisdiction to cases involving immunity defenses. Denials of immunity are immediately appealable under the collateral-order doctrine on the theory that “the central benefits” of immunity -- avoiding the costs and inconveniences of trial -- otherwise “would be forfeited” as a practical matter. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-144 (1993). If pendent jurisdiction is available under a doctrine grounded in those practical considerations, a fortiori it should be available when, as in Section 1292(a)(1), Congress has specifically authorized an appeal by statute.

2. The court of appeals had jurisdiction under 28 U.S.C. 1292(a)(1) over the entire September 5 order

Even setting aside pendent jurisdiction, Section 1292(a) provides that “the courts of appeals shall have jurisdiction of appeals from[] * * * [ i]nterlocutory orders of the district courts * * * granting * * * injunctions.” 28 U.S.C. 1292(a)(1) (emphasis added). It is thus the entire order that is appealable under Section 1292(a)(1). This Court made exactly that point in construing the parallel language of Section 1292(b): “As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996). And the Court recently employed the same interpretation of “order” to conclude that a court of appeals has jurisdiction to review all grounds for removal addressed in a remand order, not just the federal-officer ground providing the basis for appellate review under 28 U.S.C. 1447(d). BP p.l.c. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532, 1537-1538 (2021). Here, the district court granted an injunction in its September 5 order. App. B at 23. It follows that the court of appeals had jurisdiction to review the entire order -- including the portion directing that a “special master shall be APPOINTED to review the seized property.” Ibid.5

Applicant contends (Appl. 19) that Yamaha and BP are inapposite because Section 1292(b) supposedly serves “a wholly different purpose” than Section 1292(a). But what matters is the statutory text, not its perceived purpose. See Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496-2497 (2022). The plain text of Section 1292(a)(1) confers jurisdiction to review “orders * * * granting * * * injunctions,” 28 U.S.C. 1292(a)(1) -- just as the text of Section 1292(b) confers jurisdiction to review certain “order[s]” that “involve[] a controlling question of law,” 28 U.S.C. 1292(b), and just as the text of Section 1447(d) confers jurisdiction to review certain “order[s] remanding a case,” 28 U.S.C. 1447(d). Applicant’s observation (Appl. 19-20) that a court of appeals has discretion to reject an appeal under Section 1292(b), but not Section 1292(a), is a non sequitur; courts of appeals have no discretion to refuse appeals under Section 1447(d) either, but that does not undermine the textual point above. See BP, 141 S. Ct. at 1538.

Finally, applicant errs in invoking (Appl. 18-19) Abney v. United States, 431 U.S. 651 (1977). Abney held that the denial of a motion to dismiss an indictment on double-jeopardy grounds is immediately appealable under “the so-called ‘collateral order’ exception to the final-judgment rule,” id. at 657; see id. at 657-662, but that “other claims contained in the motion to dismiss” are not necessarily immediately appealable, such as a challenge to the sufficiency of the indictment, id. at 663. But Abney’s holding ultimately rested on the text of Section 1291: as the Court explained, 28 U.S.C. 1291 provides appellate jurisdiction over a “final decision,” and a ruling rejecting a double-jeopardy claim qualifies as a “final decision” under the test set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), but a ruling rejecting a sufficiency claim does not. Abney, 431 U.S. at 658. That reasoning is inapplicable to Section 1292(a), which provides appellate jurisdiction over “orders,” not just particular decisions within those orders. If anything, Abney’s focus on statutory text underscores the inaptness of applicant’s purposive and policy-based arguments (Appl. 19-21).

3. The directive to divulge classified documents is reviewable as a collateral order

A third independent basis for appellate jurisdiction is that the special-master directive is itself a collateral order, at least as applied to the records bearing classification markings. See Al Odah v. United States, 559 F.3d 539, 542-544 (D.C. Cir. 2009) (per curiam); cf. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 n.4 (2009) (leaving the question open). An interlocutory ruling is immediately appealable as a collateral order if it is “conclusive,” “resolve[s] important questions separate from the merits,” and is “effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk Industries, 558 U.S. at 106 (citation omitted).

The district court’s order compelling the disclosure of documents bearing classification markings in the special-master proceedings during the pendency of an ongoing investigation satisfies those criteria: it conclusively determines the government’s obligation to disclose those sensitive materials; compelled disclosure outside the Executive Branch is an important issue separate from the merits of the underlying dispute; and disclosure, once made, is irreversible. Applicant agrees as to the first point, but argues (Appl. 29) that appointment of the special master presents “no particularly important issue.” That mistakes the relevant inquiry, which is whether the disclosure of classified records -- not the appointment of a special master more broadly -- is important and separate from the merits. Likewise, that “the Special Master Order is reviewable on appeal” (ibid.) is nonresponsive to the point that appellate review of a ruling compelling the disclosure of classified documents will likely be futile once disclosure has occurred.

The D.C. Circuit held exactly that in Al Odah, finding appellate jurisdiction to review an order compelling disclosure of classified records. 559 F.3d at 543-544. Applicant attempts to distinguish Al Odah (Appl. 28) on the ground that the classified documents there were to be disclosed to the habeas petitioners’ counsel. But applicant likewise has insisted that the documents bearing classification markings be disclosed to his counsel under the district court’s order. See D. Ct. Doc. 83, at 4-5 (Sept. 9, 2022); D. Ct. Doc. 97, at 3 (Sept. 19, 2022); see also App. C at 4. And in any event, even disclosure only to the special master would be important and effectively unreviewable on appeal, especially in light of “the long-recognized ‘compelling interest in protecting the secrecy of information important to our national security.’” App. A at 27 (citation and ellipsis omitted). As this Court has emphasized, courts should be cautious before “insisting upon an examination” of records whose disclosure would jeopardize national security “even by the judge alone, in chambers.” United States v. Reynolds, 345 U.S. 1, 10 (1953).

* * * * *

Even if all three of the independent grounds for appellate jurisdiction set forth above might ultimately be found unavailing, applicant still would not be entitled to partial vacatur of the stay because the court of appeals did not clearly and demonstrably err in determining that it had jurisdiction. This Court has expressly left open the question whether an order compelling disclosure of classified government records is immediately appealable as a collateral order, Mohawk Industries, 558 U.S. at 113 n.4; by definition, that means that the exercise of appellate jurisdiction in this case is not “clearly wrong,” Planned Parenthood, 571 U.S. at 1062 (Scalia, J., concurring in denial of application to vacate stay). 6 Likewise, because this Court has not had the opportunity to apply the logic of Yamaha and BP to the parallel language in Section 1292(a) or to address pendent jurisdiction in circumstances like these, the exercise of appellate jurisdiction here cannot be said to be “clearly wrong.” Ibid. Indeed, the most that applicant could possibly establish about appellate jurisdiction in this case is that it presents a “‘difficult’” question, which “cuts against vacatur, since the difficulty of a question is inversely proportional to the likelihood that a given answer will be clearly erroneous.” Id. at 1061-1062 (citation omitted).

B. The Court Of Appeals Did Not Clearly And Demonstrably Err In Determining That The Government Was Likely To Succeed On The Merits

The court of appeals held that the government was likely to succeed on the merits because the district court abused its discretion in entertaining applicant’s motion in the first place, especially with respect to the records bearing classification markings. App. A at 16-22. Applicant does not directly challenge that holding or address the court of appeals’ analysis, including its conclusion that he has not alleged -- much less shown -- a violation of his constitutional rights. Id. at 17. Applicant instead contends that appointment of a special master was warranted because this case supposedly involves a “document storage dispute governed by the PRA” requiring “oversight,” Appl. 30-31; see Appl. 29-32, and because applicant had the authority to declassify classified records during his tenure in office, Appl. 33-36. Those contentions are wrong and irrelevant.

Applicant’s reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with NARA in the first place. As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them. Cf. 44 U.S.C. 2202, 2203(g)(1). Even were that not so, any dispute over access to presidential records under the PRA must be resolved in the District of Columbia, not the Southern District of Florida. 44 U.S.C. 2204(e). If applicant truly believes that this suit is “governed by the PRA,” Appl. 30, he has filed it in the wrong court -- which would be yet another reason the government is likely to succeed on the merits here.

As for applicant’s former authority to declassify documents: Despite asserting that classification status “is at the core of the dispute” in this case, Appl. 35, applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents -- much less supported such a representation with competent evidence. Indeed, the court of appeals observed that “before the special master, [applicant] resisted providing any evidence that he had declassified any of these documents” and that “the record contains no evidence that any of these records were declassified.” App. A at 19. And in any event, any such declassification would be irrelevant to the special master’s review for claims of privilege and for the return of property. App. B at 23. As the government has explained (App. D at 12-17), the classification markings establish on the face of the documents that they are not applicant’s personal property, and the documents likewise cannot contain information subject to a personal attorney-client privilege since they are necessarily governmental records, see Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. at 707.7 Thus, as the court of appeals emphasized, applicant’s “declassification argument” is a “red herring” because “declassifying an official document would not change its content or render it personal.” App. A at 19.

C. The Court Of Appeals Did Not Clearly And Demonstrably Err In Its Application Of The Remaining Stay Factors

Finally, applicant does not contend that the court of appeals clearly and demonstrably erred in applying any of the other equitable factors constituting the “accepted standards” for a stay pending appeal. Planned Parenthood, 571 U.S. at 1061 (Scalia, J., concurring in denial of application to vacate stay) (citation omitted). Those factors include “whether the [government] would have been irreparably injured absent a stay”; “whether issuance of a stay would substantially injure other parties”; and “where the public interest lay.” Ibid. (citing Nken v. Holder, 556 U.S. 418 (2009)). The court applied that standard and found that all of the factors favored a partial stay. App. A at 23-29.

As relevant here, the court of appeals explained that the government would be irreparably injured by having to disclose the classified records, some of which reflect the highest levels of classification and extraordinarily restricted distribution, to the special master and applicant’s counsel in light of “the long-recognized ‘compelling interest in protecting the secrecy of information important to our national security.’” App. A at 27 (citation and ellipsis omitted). The court found the public interest favored a stay for largely the same reasons. Id. at 28-29. The court also observed that applicant had not explained how he would be harmed by “the limited scope of the stay” with respect to the documents bearing classification markings. Id. at 28. None of those findings is clearly wrong -- and applicant does not contend otherwise.

III. APPLICANT WILL NOT SUFFER IRREPARABLE INJURY FROM THE STAY

The challenged portion of the court of appeals’ partial stay simply prevents dissemination of the documents bearing classification markings in the special-master review while the government’s appeal proceeds. That limited relief imposes no harm -- much less irreparable injury -- on applicant. Applicant does not seriously argue otherwise. Indeed, applicant devotes only two conclusory sentences to irreparable injury: He asserts that it is “unnecessary” for him to make a showing of irreparable injury because the government is not likely to succeed on appeal, Appl. 29, and that “[ i]rreparable injury could most certainly occur if the Government were permitted to improperly use the documents seized,” Appl. 35.

The first assertion cannot be reconciled with the very standard applicant cites (Appl. 3), which requires a showing of irreparable injury in addition to a likelihood of success on the merits. See Western Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Indeed, vacating a court of appeals’ stay absent a showing of an irreparable injury would be inconsistent with both the “great deference” owed to the lower court’s decision, Garcia-Mir, 469 U.S. at 1313 (Rehnquist, J., in chambers), and general principles governing the granting of extraordinary equitable relief, see Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008).

Applicant’s second assertion -- that he “could” be irreparably injured if the government “improperly use[s]” the documents, Appl. 35 -- is irrelevant because his application disclaims any request for vacatur of the portion of the court of appeals’ stay concerning the government’s use of the seized documents bearing classification markings. See Appl. 3 n.3, 9 n.6. Instead, applicant seeks vacatur only to the extent that the stay precludes the special master from reviewing those documents. Applicant has not asserted, much less demonstrated, any irreparable injury that would result from that portion of the court’s stay.

Indeed, because applicant has no plausible claims of ownership of or privilege in the documents bearing classification markings, see App. D at 12-17; App. F at 2-6, he will suffer no harm at all from a temporary stay of the special master’s review of those materials while the government’s appeal proceeds. And applicant further undermined any claim that he is suffering irreparable injury from the stay by opposing the government’s motion to expedite the underlying appeal and urging that oral argument be deferred until “January 2023 or later.” Appl. C.A. Opp. to Mot. to Expedite 2 (Oct. 3, 2022). Applicant’s failure to establish any risk of irreparable injury provides yet another independently sufficient reason to deny his request to disturb the modest partial stay entered by the court of appeals.

CONCLUSION

The application should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR
Solicitor General
OCTOBER 2022

______________

Notes:

1 The appendix to the application is divided into seven lettered sections but not consecutively paginated. This response cites the appendix using the relevant section designation and the internal pagination of the documents contained in that section.
 
2 The analysis would be different if the court of appeals were to affirm the district court’s unprecedented order. Enjoining the government, pre-indictment, from using classified records recovered under a lawful search warrant pending a special master’s review is an extraordinary intrusion raising significant national-security concerns. Cf. Department of the Navy v. Egan, 484 U.S. 518, 520 (1988) (explaining that the Court granted certiorari “because of the importance of the issue in its relation to national security concerns”). That is especially so because those records are the very subject of the investigation concerning wrongful retention of documents and information relating to the national defense, as well as obstruction of justice. See App. D at A57-A86.
 
3 Applicant is wrong to suggest (Appl. 13-15 & n.9) that because the district court appointed Judge Dearie and specified the details and mechanics of his review in its September 15 order, the court of appeals effectively stayed that later order too. The court of appeals expressly disclaimed having done so, see App. A at 15 n.3, and its order stays only the “district court order” (singular), id. at 29. The district court itself apparently did not understand the court of appeals to have stayed any portion of the September 15 order because after the stay was entered, the district court sua sponte modified that order to conform to the stay of the September 5 order. See D. Ct. Doc. 104.
 
4 Indeed, this Court has acknowledged that appellate courts reviewing interlocutory injunctive orders may properly review issues beyond just the injunction. E.g., Deckert v. Independence Shares Corp., 311 U.S. 282, 287 (1940) (on appeal from grant of preliminary injunction, court of appeals had jurisdiction to review orders denying motions to dismiss); see Munaf v. Geren, 553 U.S. 674, 691 (2008) (“[A] reviewing court has the power on appeal from an interlocutory order ‘to examine the merits of the case and upon deciding them in favor of the defendant to dismiss the bill.’”) (citation and ellipsis omitted).
 
5 Contrary to applicant’s suggestion (Appl. 13-14), that portion of the order was not merely precatory. Although the district court had not yet identified the special master or supplied the “exact details and mechanics of th[e] review process,” App. C at 23, the September 5 order itself made plain that the government would have to submit the seized documents for special-master review, see id. at 14-19, 23. Indeed, as noted above, that review is the very predicate for the injunction.
 
6 Mohawk Industries also recognized that mandamus may be an alternative path to appellate review in similar circumstances. See 558 U.S. at 111 & n.3. The government specifically preserved that alternative in the court below, see App. F at 8 n.2, thus providing yet another reason why the court of appeals did not clearly and demonstrably err in precluding the special master’s review of the documents at issue here, cf. Thigpen v. Roberts, 468 U.S. 27, 29-30 (1984).
 
7 In the district court, applicant suggested that some of the seized records might be subject to executive privilege. E.g., D. Ct. Doc. 1, at 19; D. Ct. Doc. 58, at 7-11 (Aug. 31, 2022). But applicant all but abandoned that argument in the court of appeals, and the application does not even mention it. With good reason: Applicant has identified no authority for the suggestion that he could invoke executive privilege to prevent review of Executive Branch records by “the very Executive Branch in whose name the privilege is invoked,” Nixon v. Administrator of General Services, 433 U.S. 425, 447-448 (1977). And in any event, any such invocation would necessarily yield to the government’s “demonstrated, specific need for evidence” in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them. United States v. Nixon, 418 U.S. 683, 713 (1974). See App. D at 12-17.

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Employee told FBI that Trump personally directed moving of Mar-a-Lago records: report
by Julia Mueller
The Hill
10/12/22 7:51 PM ET

An employee of former President Trump said the former president personally instructed workers in moving boxes of documents at his Mar-a-Lago residence in Palm Beach, Fla., according to a new report from The Washington Post.

The employee witness, who was not identified, told FBI agents that Trump directed his people to move boxes to his residence after a May subpoena from the government requested any remaining classified documents, the Post reported. Security footage allegedly confirmed that account.

The witness reportedly first denied handling such documents, but switched stories in a second interview with federal agents, admitting to handling boxes of documents at Trump’s behest.

The revelation is the latest development in the ongoing investigation into the former president’s treatment of classified materials and, since the report suggests Trump directed the documents to be moved after the government issued its subpoena, it could shore up arguments that Trump failed or refused to comply with the government’s requests for the documents.

Months after the government subpoenaed Trump in search of the documents believed to remain in his possession, FBI agents in August executed a search warrant at Mar-a-Lago and uncovered more than 100 classified documents and dozens of empty folders marked as classified, taken from the White House.

The former president has offered up varying defenses for how the documents came to kept at the Palm Beach, Fla., resort after the end of Trump’s time in office, including claims that he declassified the materials, though his attorneys have not gone so far in their legal arguments.

The discovery of the classified documents at the former president’s home has heightened national security concerns, as some of the materials included high-level secrets and intel. Agents conducting the Mar-a-Lago search were reportedly looking for classified documents on nuclear weapons among the materials, according to the Post.

A new report from The New York Times last week suggests Trump may still be in possession of classified documents even as the Justice Department battles with Trump in court over the review of the materials.

The Hill has reached out to Trump for comment.

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Order in Pending Case (Denying Trump's Application to Vacate Stay)
Donald J. Trump v. United States
by U.S. Supreme Court
October 13, 2022

IN THE SUPREME COURT OF THE UNITED STATES

DONALD J. TRUMP, APPLICANT
v.
UNITED STATES OF AMERICA

(ORDER LIST: 598 U.S.)

THURSDAY, OCTOBER 13, 2022

ORDER IN PENDING CASE

22A283 TRUMP, DONALD J. V. UNITED STATES

The application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit on September 21, 2022, presented to Justice Thomas and by him referred to the Court is denied.

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Memorandum of Law in Support of Plaintiff's Motion for a Preliminary Injunction
People of the State of New York, by Leticia James, Attorney General of the State of New York, Plaintiff, against, Donald J. Trump, et al., Defendants
by New York Attorney General Leticia James
October 13, 2022

-- Supplemental Verified Petition, by Letitia James, Attorney General of the State of New York, Against The Trump Organization, January 18, 2022

-- Supplemental Verified Petition, People of the State of New York, by Letitia James, Attorney General of the State of New York, Petitioner, against The Trump Organization, Inc.; DJT Holdings LLC; DJT Holdings Managing Member LLC; Seven Springs LLC; Eric Trump; Charles Martabano; Morgan, Lewis & Bockius, LLP; Sheri Dillon; Mazars USA LLC; Donald J. Trump; Donald Trump, Jr.; and Ivanka Trump, Respondents, January 18, 2022

-- Decision and Order on Motion: The People of the State of New York, by Letitia James v. The Trump Organization, Inc., et al., by Hon. Arthur Engoron, February 17, 2022

-- Summons and Verified Complaint, People of the State of New York, by Leticia James, Attorney General of the State of New York, Plaintiff, against, Donald J. Trump, Donald Trump, Jr., Eric Trump, Ivanka Trump, Allen Weisselberg, Jeffrey McConney, The Donald J. Trump Revocable Trust, The Trump Organization, Inc., Trump Organization LLC, DJT Holdings, LLC, DJT Holdings Managing Member, Trump Endeavor 12 LLC, 401 North Wabash Venture, LLC, Trump Old Post Office, LLC, 40 Wall Street, LLC, and Seven Springs, LLC, Defendants, September 21, 2022

-- People of the State of New York, by Leticia James, Attorney General of the State of New York, Plaintiff, against, Donald J. Trump, et al., Defendants, Memorandum of Law in Support of Plaintiff's Motion for a Preliminary Injunction, October 13, 2022

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

PEOPLE OF THE STATE OF NEW YORK, by LETITIA JAMES, Attorney General of the State of New York,
Plaintiff,
-against-
DONALD J. TRUMP, et al.,
Defendants.

Index No. 452564/2022

Hon. Arthur Engoron

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

LETITIA JAMES
Attorney General of the State of New York
28 Liberty Street
New York, NY 10005

Kevin C. Wallace
Andrew Amer
Colleen K. Faherty
Alex Finkelstein
Wil Handley
Eric R. Haren
Louis M. Solomon
Stephanie Torre
Of Counsel

TABLE OF CONTENTS

• BACKGROUND
• ARGUMENT
• THE PEOPLE ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR § 63(12) FRAUD CLAIMS AGAINST THE TRUMP ORGANIZATION
• THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST WEIGH IN FAVOR OF GRANTING OAG’S REQUESTED PRELIMINARY RELIEF
• THE RELIEF SOUGHT HERE IS APPROPRIATELY TAILORED TO CURBING UNLAWFUL CONDUCT AND ENSURING FUNDS ARE AVAILABLE FOR ANY DISGORGEMENT AWARD AT THE TERMINATION OF THIS ACTION
• CONCLUSION

TABLE OF AUTHORITIES

CASES

• Adirondack Park Agency v. Hunt Bros. Contrs., 234 A.D.2d 737 (3d Dep’t 1996) ..................... 14
• Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d 623 (2d Dep’t 2011) ............................... 5
• Chase Manhattan Bank, National Ass’n v. Federal Chandros, Inc., 148 A.D.2d 567 (2d Dep’t 1989) ............................................................................................................................... 10
• City of New York v. Beam Bike Corp., 206 A.D.3d 447 (1st Dep’t 2022) ...................................... 6
• City of New York v. Golden Feather Smoke Shop, Inc., No. 08-cv-3966, 2009 WL 2612345 (E.D.N.Y. Aug. 25, 2009) .......................................................................................... 15
• Employees’ Retirement System of Government of Virgin Islands v. Blanford, 794 F.3d 297 (2d Cir. 2015) ..................................................................................................................... 10
• Flandera v. AFA Am. Inc., 78 A.D.3d 1639 (4th Dep’t 2010) ..................................................... 11
• FTC v. World Wide Factors, 882 F.2d 344 (9th Cir. 1989) .......................................................... 14
• Hynes v. Iadarola, 221 A.D.2d 131 (2d Dep’t 1996) ................................................................... 19
• Icy Splash Food & Beverage, Inc. v. Henckel, 14 A.D.3d 595 (2d Dep’t 2005) ............................ 5
• In re Atlas Air Worldwide Holdings, Inc. Securities Litigation, 324 F. Supp. 2d 474 (S.D.N.Y. 2004) .......................................................................................................................... 9
• In re BISYS Securities Litigation, 397 F. Supp.2d 430 (S.D.N.Y. 2005) ....................................... 9
• Lowry v. RTI Surgical Holdings, 532 F. Supp. 3d 652 (N.D. Ill. 2021) ......................................... 9
• Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31 (1980) ....................... 10
• New York v. Abortion Info. Agency, 323 N.Y.S.2d 597 (Sup. Ct. N.Y. Cnty. 1971), aff’d, 37 A.D.2d 142 (1st Dep’t 1971) ................................................................................................. 6
• New York v. Smart Apts. LLC, 959 N.Y.S.2d 890 (Sup. Ct. N.Y. Cnty. 2013) ............................ 14
• Omnicare, Inc. v. Laborers District Council, 575 U.S. 175 (2015) ............................................. 12
• People v. 21st Century Leisure Spa, Int’l, 153 Misc. 2d 938 (Sup. Ct. N.Y. Cnty. 1991) ............. 6
• People v. Allen, 198 A.D.3d 531 (1st Dep’t 2021), leave to appeal granted, 38 N.Y.3d 996 (2022) .................................................................................................................................. 8
• People v. Allen, 2020 N.Y. Misc. LEXIS 443, 2020 NY Slip Op 30292(U) (Sup. Ct. N.Y. Cnty., Feb. 4, 2020) .................................................................................................................... 6
• People v. Apple Health & Sports Club, Ltd., 80 N.Y.2d 803 (1992).............................................. 6
• People v. Apple Health & Sports Clubs, Ltd. Inc., 174 A.D.2d 438 (1st Dep’t 1991), aff'd, 80 N.Y.2d 803 (1992) ............................................................................................. 6
• People v. Apple Health and Sports Clubs, Ltd., 206 A.D.2d 266 (1st Dep’t 1994), dismissed in part, denied in part, 84 N.Y.2d 1004 (1994) ..................................................... 7, 8
• People v. Coventry First LLC, 52 A.D.3d 345 (1st Dep’t 2008) .................................................... 8
• People v. Greenberg, 27 N.Y.3d 490 (2016) .................................................................... 13, 14, 19
• People v. Leasing Expenses Company, LLC, Index No. 452357/2020 (Sup. Ct. N.Y. Cnty.) ......................................................................................................................................... 6
• People v. Lexington Sixty-First Assoc., 38 N.Y.2d 588 (1976) .................................................... 13
• People v. Northern Leasing Systems, Inc., 193 A.D.3d 67 (1st Dep’t 2021) ................................. 7
• People v. Trump Entrepreneur Initiative, 137 A.D.3d 409 (1st Dep’t 2016) ................................. 8
• Polish & Slavic Federal Credit Union v. Saar, 39 Misc.3d 850 (Sup. Ct. Kings Cnty. Apr. 3, 2013) ............................................................................................................................. 11
• Porter v. Warner Holding Co., 328 U.S. 395 (1946)...................................................................... 6
• S.E.C. v. First Jersey Securities, Inc., 101 F.3d 1450 (2d Cir. 1996) ........................................... 19
• SEC v. Management Dynamics, Inc., 515 F.2d 801 (2d Cir. 1975) ........................................ 13, 15
• SEC v. Trabulse, 526 F. Supp. 2d 1008 (N.D. Cal. 2007) ............................................................ 18
• State of New York v. First Investors Corp., 156 Misc. 2d 209 (Sup. Ct. N.Y. Cnty.) ........ 6, 14, 20
• State of New York v. Wolowitz, 96 A.D.2d 47 (2d Dep’t 1983)...................................................... 8
• State v. Gen. Elect. Co., 302 A.D.2d 314 (1st Dep’t 2003) ........................................................ 7, 8
• State v. Kozak, 91 Misc. 2d 394 (Sup. Ct. N.Y. Cty. 1977) .......................................................... 20
• State v. Terry Buick, Inc., 137 Misc. 2d 290 (Sup. Ct. Dutchess Cnty. 1987)................................ 6
• United States v. Diapulse Corp. of America, 457 F.2d 25 (2d Cir. 1972) .................................... 14
• Village of Pelham Manor v. Crea, 112 A.D.2d 415 (2d Dep’t 1985) ............................................ 6
• West Side Fed. Sav. & Loan Ass’n of New York City v. Hirschfeld, 101 A.D.2d 380 (1st Dept 1984) ............................................................................................................................... 12

STATUTES

• N.Y. Exec. Law § 63(12) ............................................................................................................ 7, 8

The People of the State of New York, by Letitia James, Attorney General of the State of New York (“OAG”), respectfully submit this memorandum of law and the accompanying Affirmation of Colleen K. Faherty, dated October 13, 2022 (“Faherty Aff.”), in support of their motion by order to show cause for a preliminary injunction and appointment of a monitor. The order to show cause also seeks as additional relief permission to serve certain individual Defendants electronically and the scheduling of a preliminary conference to set a trial date for early October 2023. Specifically, OAG seeks: (i) the appointment of an independent monitor to oversee the submission of certain financial information to third parties, including accountants, lenders, and insurers, by Defendants the Trump Organization, Inc., the Trump Organization LLC, DJT Holdings LLC, and DJT Holdings Managing Member LLC (collectively, the “Trump Organization”); (ii) to enjoin Defendants from transferring to non-party affiliates or otherwise disposing of assets without Court approval in order to prevent further violations of Executive Law § 63(12) and maintain the status quo during the pendency of this action; (iii) permission to serve electronically Defendants Donald J. Trump and Eric Trump; and (iv) holding a preliminary conference in order to set an expedited trial schedule.

BACKGROUND

As demonstrated in exacting detail in OAG’s 214-page verified complaint (NYSCEF No. 1) (the “Complaint”), Donald J. Trump and the Trump Organization, along with the other individuals named as Defendants, engaged in persistent and repeated fraud and illegality on a staggering scale in the preparation and distribution of Mr. Trump’s Statements of Financial Condition (“Statements”) over an 11-year period from 2011 through 2021. The fact that those Statements were false and misleading is beyond debate. The accounting firm that compiled the Statements informed the Trump Organization that the Statements for the years 2011 to 2020 “should no longer be relied upon” and withdrew from its decades-long accounting and auditing relationship with Mr. Trump and the Trump Organization. Faherty Aff. ¶ 8. Moreover, disclosures about the misrepresentations in the Statements, and a refusal by the Trump Organization to answer basic inquiries about those disclosures, led their largest lender to execute a “managed exit” of the relationship. Faherty Aff. ¶¶ 50-55.

Even more tellingly, as OAG identified and questioned Defendants about specific fraudulent practices during the pendency of its investigation, the Trump Organization began quietly backing away from such practices, effectively acknowledging they were false and misleading. For example, when Trump Organization employees were challenged about references to consultations with “outside professionals” in the Statements during sworn testimony before OAG in 2020, that language was subsequently changed in the 2020 Statement. Compl. ¶¶ 104-05. The Trump Organization also began to pay off loans early, specifically those with personal guarantees that required the submission – and certification – of annual Statements. Faherty Aff. ¶ 76. When negotiating new loans, the Trump Organization sought to avoid the submission of the Statements or even a calculation of net worth, and instead submitted a list of real estate assets and liabilities without a representation as to value. Id.

But these steps merely seek to avoid the impact of the past fraudulent behavior identified over the course of the investigation and laid out in the Complaint. They do not reflect a change in the fundamental business practices of the Trump Organization to use fraud and misrepresentation to secure financial benefits it could not otherwise obtain, including through the false and misleading inflation of Mr. Trump’s net worth. Indeed, in many areas, the Trump Organization has continued using practices they knew to be improper or fraudulent. For example, the 2021 Statement continues to value golf clubs using the improper “fixed assets” method, the valuation for Mar-a-Lago still does not account for restrictions on use of the property, and Mr. Trump continues to treat $93 million held in a Vornado partnership as his own cash. Compl. ¶¶ 407, 434, 450, 458, 474 (fixed assets), ¶¶ 375-383, (Mar-a-Lago), ¶¶ 74-75 (cash). The Trump Organization is still required to submit a Statement for 2022 under the terms of a number of loans, including the Deutsche Bank loan on Trump Chicago.

Beyond just the continuation of its prior fraud, the Trump Organization now appears to be taking steps to restructure its business to avoid existing responsibilities under New York law. On September 21, 2022, the same day OAG filed this action, the Trump Organization registered a new entity with the New York Secretary of State: Trump Organization II LLC. Faherty Aff. ¶ 81. That entity is a foreign corporation, incorporated in Delaware on September 15, 2022 with the name “Trump Organization LLC.” Id. When OAG raised its “concern that the Trump Organization may be seeking to move assets out of state,” and asked counsel for “some assurance that there will be no change to the status quo ante over the coming months (or that [OAG] will at least have reasonable advance notice of asset transfers),” the Trump Organization offered no assurances.1 Faherty Aff. ¶¶ 83-84. Counsel simply stated, “The Trump Organization has not ‘taken steps to avoid the jurisdiction of the court or make it difficult to obtain relief against the corporate entities.’” Faherty Aff., Ex. 78. On the eve of this filing, counsel did offer to provide assurances and advance notice to address what were described as “purported concerns,” but again offered no concrete mechanism to either effectuate or enforce that offer. Faherty Aff. ¶ 85.

By this order to show cause, OAG seeks a preliminary injunction to prevent the continuation of the fraudulent valuation scheme and preserve the status quo ante pending trial, which should be scheduled as soon as practicable. Specifically, OAG is seeking an order that (i) prohibits the Trump Organization from issuing a statement of financial condition or other asset disclosure for Mr. Trump that fails to adequately disclose the assumptions and techniques used for valuing his assets and (ii) prohibits the Trump Organization from transferring any material asset to a non-party affiliate or otherwise disposing of a material asset without Court approval. To oversee compliance with this injunction, the order to show cause also seeks the appointment of an independent monitor during the pendency of this action. That monitor would oversee: (i) the submission of financial information to any accounting firm that compiles the 2022 Statement; (ii) appropriate financial disclosures to lenders and insurers necessary to satisfy continuing obligations under loan covenants and insurance programs or to obtain new financing and insurance; and (iii) any corporate restructuring or disposition of significant assets. The order to show cause seeks to impose these restrictions in advance of a trial date to be set for early October 2023.

The People are entitled to this preliminary relief because they have a strong likelihood of success on the merits and the balance of equities and public interest weigh sharply in their favor. As detailed in the Complaint and shown in the Faherty Affirmation, over the course of at least the past 11 years, Defendants employed multiple deceptive strategies to inflate by billions of dollars the aggregate value of more than 20 assets that make up Mr. Trump’s net worth reflected on his Statements. Those deceptive strategies included the following: ignoring generally accepted accounting principles (“GAAP”); ignoring legal restrictions that apply to limit property development and marketability such as rent stabilization laws and local building rules and regulations; using objectively false factual assumptions like inflated square footage; ignoring and concealing from accountants and financial institutions appraisals prepared by outside professionals; using figures for operating income that conflict with internal budget projections; and using inappropriate valuation methods. The Trump Organization then submitted these false and fraudulent Statements to financial institutions to: (i) obtain financial benefits it would otherwise not be entitled to receive; (ii) satisfy continuing obligations under loan agreements; and (iii) obtain insurance at higher limits for lower premiums.

The balance of equities and public interest weigh decisively in favor of preventing further fraudulent and illegal conduct by the Trump Organization. As the Complaint articulates, the fraudulent and illegal conduct by the Trump Organization persisted for more than a decade—even while the Statements were under active law enforcement scrutiny. Even to this day, Mr. Trump and other Trump Organization principals extol these very Statements and the information they contain. In short, there is every reason to believe that the Defendants will continue to engage in similar fraudulent conduct right up to trial unless checked by order of this Court. The requested targeted relief is designed to mitigate further fraud and illegality during the pendency of this action because the company has present and continuing obligations under existing loan agreements to prepare and disclose Mr. Trump’s Statement of Financial Condition as of June 30, 2022 and may also seek additional financing from lenders and renewal of insurance programs on the basis of that Statement.

ARGUMENT

In an action pursuant to Executive Law § 63(12) to redress persistent fraud and illegality in the conduct of business, this Court has broad power to grant, and discretion to fashion, both preliminary and permanent injunctive relief.2 See, e.g., People v. Apple Health & Sports Club, Ltd., 80 N.Y.2d 803, 806-07 (1992). For example, this Court in a § 63(12) action may preliminarily enjoin continued unlawful conduct, halt transfers of assets, freeze bank accounts, require posting of a bond, or take similar measures in its equitable discretion. See id.3 In general, a court sitting in equity in a public-interest enforcement action such as this one may fashion appropriate equitable relief under the circumstances. Porter v. Warner Holding Co., 328 U.S. 395, 397-98 (1946).

In seeking a preliminary injunction in an action under § 63(12), OAG need demonstrate only a likelihood of success on the merits and that the equities weigh in its favor. City of New York v. Beam Bike Corp., 206 A.D.3d 447, 448 (1st Dep’t 2022); People v. Apple Health & Sports Clubs, Ltd. Inc., 174 A.D.2d 438, 438–39 (1st Dep’t 1991), aff'd, 80 N.Y.2d 803 (1992). OAG “is not required to show proof of irreparable harm” to obtain preliminary injunctive relief under § 63(12). See Beam Bike Corp., 206 A.D.3d at 448 (citing Apple Health, 174 A.D.2d at 438-39); see also Apple Health, 174 A.D.2d at 438-39 (expressly rejecting any requirement to show irreparable injury in awarding preliminary injunction in § 63(12) action). 4

I. THE PEOPLE ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR § 63(12) FRAUD CLAIMS AGAINST THE TRUMP ORGANIZATION

As established herein, and in OAG’s Complaint and associated exhibits, the People have an overwhelming likelihood of success on the merits in this § 63(12) action. The Trump Organization engaged in numerous instances of fraudulent and illegal conduct in the preparation and dissemination of over a decade’s worth of Mr. Trump’s Statements. Moreover, the Trump Organization (along with the other Defendants) repeatedly inflated the value of Mr. Trump’s assets on his Statements through fraud and misrepresentation, and then submitted those Statements to financial institutions to receive benefits that the company would not otherwise have obtained.

Executive Law § 63(12) gives OAG the power to bring an action against any person or entity that engages in “repeated fraudulent or illegal acts” or “otherwise demonstrate[s] persistent fraud or illegality in the carrying on . . . or transaction of business.” N.Y. Exec. Law § 63(12). There are thus two categories of conduct that can subject a party to liability under § 63(12): acts that are “fraudulent” and acts that are “illegal.” Id.

As to “fraud,” § 63(12) broadly construes fraud “to include acts characterized as dishonest or misleading.” People v. Apple Health and Sports Clubs, Ltd., 206 A.D.2d 266, 267 (1st Dep’t 1994), dismissed in part, denied in part, 84 N.Y.2d 1004 (1994). The statute proscribes any acts committed in the conduct of business that have “the capacity or tendency to deceive,” or that “create[] an atmosphere conducive to fraud.” People v. Northern Leasing Systems, Inc., 193 A.D.3d 67, 75 (1st Dep’t 2021); State v. Gen. Elect. Co., 302 A.D.2d 314, 314 (1st Dep’t 2003). Such acts, by the plain language of the statute, include those committed through any scheme to defraud and also through “misrepresentation, concealment, suppression,” or “false pretense.” N.Y. Exec. Law § 63(12). Moreover, when a failure to effectively supervise creates “an enterprise conducive to fraud,” a § 63(12) violation has been established. Northern Leasing, 193 A.D.3d at 75-76. Neither an intent to defraud nor reliance need be shown. Apple Health, 206 A.D.2d at 267; People v. Coventry First LLC, 52 A.D.3d 345, 346 (1st Dep’t 2008); see also People v. Trump Entrepreneur Initiative, 137 A.D.3d 409, 417 (1st Dep’t 2016) (recognizing prior First Department precedent establishing that “fraud under § 63(12) may be established without proof of scienter or reliance”). In assessing whether this broad standard for fraud has been satisfied, the Court looks not only to the average recipient of fraudulent conduct, “but also the ignorant, the unthinking and the credulous.” Gen. Electric, 302 A.D.2d at 314; see also People v. Allen, 198 A.D.3d 531, 533 (1st Dep’t 2021) (upholding finding of fraud under § 63(12) based on fraudulent representations to investors), leave to appeal granted, 38 N.Y.3d 996 (2022).

As to illegality, an “illegal act” under § 63(12) includes any violation of a federal, state, or local law, including as relevant here, the falsification of business records, issuance of a false financial statement, and insurance fraud.5

Under § 63(12), conduct may be the subject of an enforcement action if it is either “repeated” or “persistent.” Such conduct is “repeated” if it involves either “any separate and distinct fraudulent or illegal act, or conduct which affects more than one person.” N.Y. Exec. Law § 63(12). Thus, “the Attorney-General [may] bring a proceeding when the respondent was guilty of only one act of alleged misconduct, providing it affected more than one person.” State of New York v. Wolowitz, 96 A.D.2d 47, 61 (2d Dep’t 1983). The term “persistent” includes the “continuance or carrying on of any fraudulent or illegal act or conduct.” N.Y. Exec. Law § 63(12)

The evidence of the Trump Organization’s fraud in deriving and presenting the asset valuations reflected in the Statements over the course of a decade-plus is overwhelming. An array of fraudulent schemes, representations, misleading conduct, and omissions are detailed herein, in the Complaint and its associated exhibits, and in the accompanying Faherty Affirmation and exhibits. OAG’s verified allegations amply demonstrate the clear likelihood of success on the merits of all of OAG’s claims, and a few examples are highlighted below.

First, the Trump Organization’s long-term accounting firm has acknowledged that the Statements it compiled from 2011 to 2020—ten years’ worth of Statements including dozens upon dozens of valuations—can no longer be relied upon. Faherty Aff. ¶ 8. That fact alone indicates that OAG is likely to succeed on the merits of its claims—particularly under § 63(12), which does not require a showing of scienter or reliance for OAG to prevail. Cf. In re BISYS Securities Litigation, 397 F. Supp.2d 430, 437 (S.D.N.Y. 2005) (noting that “mere fact” of financial restatement is sufficient to plead falsity); In re Atlas Air Worldwide Holdings, Inc. Securities Litigation, 324 F. Supp. 2d 474, 487 (S.D.N.Y. 2004) (same); Lowry v. RTI Surgical Holdings, 532 F. Supp. 3d 652, 660 (N.D. Ill. 2021) (five years’ worth of inaccurate financial results, combined with GAAP violations and accounting restatements, held to be “likely enough by itself to show materiality” of misstatements). Indeed, this Court emphasized the significance of the accounting firm’s “red flag” retraction in its February 17, 2022 Order compelling Mr. Trump and other Defendants to testify. Moreover, Mr. Trump’s lead accountant testified that his firm was misled by the Trump Organization’s concealment of information pertinent to the Statements. Faherty Aff. ¶ 9.

Second, the fact that Mr. Trump, Eric Trump and the former Chief Financial Officer of the Trump Organization, Allen Weisselberg, all invoked their privilege against self-incrimination when questioned about the Statements similarly supports OAG’s likelihood of success on the merits of its claims. Faherty Aff. ¶¶ 10-27. The privilege may only be invoked “when there is reasonable cause to apprehend danger” in the form of self-incrimination “from a direct answer.” Chase Manhattan Bank, National Ass’n v. Federal Chandros, Inc., 148 A.D.2d 567, 568 (2d Dep’t 1989). And, as the Court of Appeals has explained, such an invocation may be considered “in assessing the strength of evidence offered by the opposite party.” Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 42-43 (1980) (analogizing invocation of privilege in civil case to failure to produce material witness).

Third, Donald Trump, Jr.—although he did not assert his Fifth Amendment protection—incredibly disclaimed all responsibility for the Statements and their contents in sworn testimony. Faherty Aff. ¶ 28. Donald Trump, Jr. was a senior executive at the Trump Organization. He was the trustee of the Donald J. Trump Revocable Trust, was responsible for certifying the Statements’ accuracy to banks, and in fact signed such certifications. He personally signed representation letters to Mazars on each Statement engagement when he was a trustee, and those letters outlined his duties as trustee. Faherty Aff. ¶ 32. The Statements themselves repeatedly credit him, as trustee, with the information they contain. See, e.g., NYSCEF No. 17 at 1. That he testified he has no knowledge of GAAP accounting (with which the Statements expressly state they comply) and had nothing to do with the preparation of the Statements lends strong support to OAG’s position that the Statements were fraudulent. Faherty Aff. ¶¶ 30-35; See Employees’ Retirement System of Government of Virgin Islands v. Blanford, 794 F.3d 297, 306 (2d Cir. 2015) (factors supporting scienter in securities fraud action include that defendant “failed to check information they had a duty to monitor”).

Fourth, there is abundant evidence of objective falsity repeated year after year on the Statements and in the data supporting them. See, e.g., Flandera v. AFA Am. Inc., 78 A.D.3d 1639, 1640 (4th Dep’t 2010) (“An assessment of market value that is based upon misrepresentations concerning existing facts” supports common law fraud action); Polish & Slavic Federal Credit Union v. Saar, 39 Misc.3d 850 (Sup. Ct. Kings Cnty. Apr. 3, 2013). Indeed, Mr. Weisselberg admitted that the Statements overvalued Mr. Trump’s apartment by “give or take” $200 million—and evidence later revealed he was provided with the true facts regarding the apartment’s square footage before certifying as accurate the inflated apartment value based on false information. Faherty Aff. ¶ 36. Similarly, the Statements included as cash belonging to Mr. Trump cash that was not Mr. Trump’s—even to the tune of more than $90 million in the 2021 Statement. Faherty Aff. ¶ 49. There were instances in which the Trump Organization had copies of professional appraisals in its files that contradicted the stated value of 40 Wall Street by $200 to $300 million—even though the Trump Organization professed to rely on the very same appraiser for its inflated values. Faherty Aff. ¶¶ 38-40.

Fifth, there were instances in which the valuation techniques actually used to prepare the Statements were directly (and falsely) contradicted by the descriptions in the Statements. Those examples included the fact that the valuation of golf clubs padded an additional 15-30% for the value of the Trump brand despite (a) an express claim in the Statements that they do not include “the goodwill attached to the Trump name” and (b) an express representation of compliance with GAAP, even though GAAP prohibits inclusion of an internally generated intangible brand premium. Faherty Aff. ¶ 45. Moreover, those examples include the fact that Mr. Trump valued certain membership deposit liabilities at full face value to increase the purchase price of golf clubs, thereby increasing valuations in the Statements, despite an express claim in the Statements that Mr. Trump and his trustees “value this liability at zero.” Faherty Aff. ¶ 47.

Sixth, there were repeated instances of the Trump Organization both failing to disclose, and omitting from their valuation methods, legal restrictions on properties known to Mr. Trump and his agents. Faherty Aff. ¶¶ 41-44. There were restrictive documents that Mr. Trump himself signed—but which were then ignored when valuing the properties and not disclosed in the Statements. Faherty Aff. ¶ 43. Particularly in the context of a formal financial statement prepared by the Trump Organization but then compiled and presented by an independent public accounting firm, it was false or misleading to wholly ignore contradictory facts known to the Trump Organization but withheld from its own accountants and recipients of the Statements. See West Side Fed. Sav. & Loan Ass’n of New York City v. Hirschfeld, 101 A.D.2d 380, 385 (1st Dept 1984) (statement of market value by party with superior knowledge implies that the “declarant knows facts which support that opinion and that he knows nothing which contradicts the statement”); see also Omnicare, Inc. v. Laborers District Council, 575 U.S. 175, 191 (2015) (“[I]f the real facts are otherwise, but not provided, the opinion statement will mislead its audience.”).

Seventh, further supporting OAG’s likelihood of success on the merits is the fact that Deutsche Bank—the Trump Organization’s principal lender for nearly all of the last ten years—decided to exit its relationship with the Trump Organization. Faherty Aff. ¶¶ 50-55. The accuracy of the Statements as certified by Mr. Trump, one of his trustees, or Eric Trump was an important component of loans obtained and maintained by the Trump Organization over the last ten years. Faherty Aff. ¶¶ 50, 53. But when Deutsche Bank learned in 2020 of OAG’s allegations of misrepresentations in the Statements from the pendency of OAG’s subpoena enforcement action, it asked the Trump Organization a series of questions about those Statements. Faherty Aff. ¶ 51. The Trump Organization refused to respond. Faherty Aff. ¶¶ 52, 54. As a result, Deutsche Bank decided – just like Mazars – to exit its relationship with the company. Faherty Aff. ¶ 55. The bank’s communications to the Trump Organization respecting the Statements in that context stressed that material misrepresentations on the Statements could be events of default. Faherty Aff. ¶ 53.

Eighth, the insurance-related fraud committed in connection with the Statements further confirms OAG’s likelihood of success here. The Trump Organization only permitted a particular insurer to review the Statements in hard copy at the Trump Organization’s offices in on-site reviews; and then, in years when he was a trustee, Mr. Weisselberg made additional, affirmative misrepresentations about the Statements’ contents—namely that the valuations contained in the Statements were derived by a professional appraisal firm rather than by the Trump Organization itself. Faherty Aff. ¶¶ 56-68.

To the extent any further evidence of the repeated or persistent nature of the Trump Organization’s fraudulent use of the Statements were required, the Complaint likewise alleges through verified allegations that Mr. Trump’s Statements were employed in a variety of other transactions, attempted transactions, and public contracts. See Compl. ¶¶ 647-675.

II. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST WEIGH IN FAVOR OF GRANTING OAG’S REQUESTED PRELIMINARY RELIEF

The balance of equities, including the substantial public interest in curbing fraudulent and unlawful conduct, strongly favors the issuance of the requested preliminary relief.

A § 63(12) action is “not a ‘run of the mill’ action for an injunction, but rather one authorized by remedial legislation, brought by the Attorney General on behalf of the People of the State and for the purposes of preventing fraud and defeating exploitation.” People v. Greenberg, 27 N.Y.3d 490, 496-97 (2016) (quoting People v. Lexington Sixty-First Assoc., 38 N.Y.2d 588, 598 (1976)). In such an action, “the standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief.” Id. at 497 (citing SEC v. Management Dynamics, Inc., 515 F.2d 801, 808 (2d Cir. 1975)). Moreover, where, as here, an agency is granted by the Legislature the power to seek injunctive relief to curb unlawful conduct, those “formidable powers” weigh heavily in favor of injunctive relief. Adirondack Park Agency v. Hunt Bros. Contrs., 234 A.D.2d 737, 738 (3d Dep’t 1996) (reversing for abuse of discretion denial of preliminary injunction); see also FTC v. World Wide Factors, 882 F.2d 344, 347 (9th Cir. 1989) (public interest receives “greater weight” in equities analysis).

Here, the equities strongly favor preliminary relief. Indeed, Defendants here can have no possible interest in continued issuance of financial statements containing fraudulent and misleading valuations and verbiage. There is “no vested interest in a business activity found to be illegal.” United States v. Diapulse Corp. of America, 457 F.2d 25, 29 (2d Cir. 1972). As New York courts similarly have articulated, for example, when a business operation is illegal, “the equities lie in favor of shutting [it] down,” “rather than in allowing said business to continue to operate (to defendants’ presumed financial advantage).” New York v. Smart Apts. LLC, 959 N.Y.S.2d 890, 898 (Sup. Ct. N.Y. Cnty. 2013); see also First Investors Corp., 156 Misc. 2d at 214-215 (granting preliminary injunction and finding that the equities balance in favor of plaintiff, where it appears likely that defendants violated the Martin Act, and plaintiff is attempting to protect public interest). Indeed, given the wide range of market participants and governmental entities to which Defendants have disseminated the fraudulent information, there is a strong market-protective interest in ensuring such conduct is curbed.

Moreover, to the extent likelihood of recurrence is a pertinent factor, it plainly supports granting preliminary relief here. See, e.g., Greenberg, 27 N.Y.3d at 496-97 (likelihood of continuing violation sufficient to support permanent injunction). The conduct at issue was repeated, and persisted, for a decade or more under the direction and control of the same insular group of top executives, including Mr. Trump before January 2017. That same group (except for Mr. Weisselberg, perhaps, due to his indictment) controls the Trump Organization today. The conduct persisted even under an ostensible change in management from January 2017 through January 2021 pursuant to a revocable trust regime in which Donald Trump, Jr. and Mr. Weisselberg served as trustees; today, Donald Trump, Jr. continues to serve as the only trustee. In light of the longtime misconduct at issue here by this group of executives running a closely held company, the likelihood that the same or similar conduct will continue is substantial. “[T]he commission of past illegal conduct is highly suggestive of the likelihood of future violations.” Management Dynamics, 515 F.2d at 807; see also City of New York v. Golden Feather Smoke Shop, Inc., Civ. No. 08-3966, 2009 WL 2612345, at *41-42 (E.D.N.Y. Aug. 25, 2009) (“long history” of unlawful conduct supports award of injunctive relief).6

That logic is particularly compelling here, because the Trump Organization has repeatedly pursued its fraudulent practices despite possessing (and even commissioning the creation of) information that should have led it to change course. For example, when presented with true facts regarding Mr. Trump’s triplex, Mr. Weisselberg opted to “leave” it “alone” and within days falsely certify a financial statement contrary to those true facts. Faherty Aff. ¶ 73. Similarly, the Trump Organization repeatedly commissioned or otherwise obtained valuation work using legitimate methods—but then disregarded it when preparing numbers for the Statements. Id.

Even when the Trump Organization was aware of OAG’s investigation relating to the Statements, it persisted in its unlawful conduct. For example, in March and June of 2020, as part of its investigation, OAG conducted lengthy examinations of Mr. McConney regarding issues with the valuation approaches taken in the Statements. Faherty Aff. ¶ 74. Similarly, in July and September 2020, OAG interviewed Mr. Weisselberg and asked him about the strategies used to inflate valuations on numerous properties. Id. Indeed, by the start of October 2021, OAG had taken 14 days of testimony from 9 employees at the Trump Organization. Id. Nevertheless, the Trump Organization continued to engage in fraudulent conduct by inflating asset valuations even on the 2021 Statement issued on October 29, 2021. Faherty Aff. ¶ 75.

Mr. Trump’s public statements quell any doubt about whether the challenged conduct at Mr. Trump’s “namesake” company is likely to continue. In a press release on February 15, 2022 – more than a month after OAG filed a supplemental petition in its enforcement proceeding – Mr. Trump praised the Statements and issued the 2014 Statement publicly. He insisted that the Trump Organization’s assets were “in many cases, far more valuable than what was listed in” the Statements. Faherty Aff. ¶ 78. He further stated that the asset values do not include “estimated brand value,” which he professed would increase his net worth to “approximately $8 to $9 billion,” id., even though the valuations for many of his golf clubs did include a premium for brand value, see supra at 11. Since the filing of the Complaint, too, Mr. Trump has stood by the Statements despite invoking the Fifth Amendment when placed under oath and asked about them. Publicly, he has insisted he made no misrepresentations to banks, but instead had warned them that his Statements were unreliable, and has relied upon the “very big” “very powerful” disclaimer accompanying his Statements, suggesting he and his namesake company feel perfectly entitled to commit fraud in a formal financial statement as long as they include a large disclaimer (which they actually do not include). Faherty Aff. ¶ 79

Lastly, the Trump Organization continues to have financial disclosure obligations on existing loans. In particular, the Trump Organization has obligations that will require the company to submit to lenders Mr. Trump’s Statement of Financial Condition as of June 30, 2022, which is likely to be issued soon.7 Relatedly, the Trump Organization also has obligations on other new loans to provide banks with information regarding Mr. Trump’s assets, though perhaps not in the same form as the Statement of Financial Condition. For example, two new loans require “a schedule of material real estate assets and material related liabilities, including material contingent liabilities, and a calculation of Liquidity.”8 Faherty Aff. ¶ 71. Regardless of the form of the disclosure, though, the Trump Organization’s long history of misconduct warrants the imposition of an injunction.

III. THE RELIEF SOUGHT HERE IS APPROPRIATELY TAILORED TO CURBING UNLAWFUL CONDUCT AND ENSURING FUNDS ARE AVAILABLE FOR ANY DISGORGEMENT AWARD AT THE TERMINATION OF THIS ACTION

The preliminary relief sought by OAG has two principal components: (i) the appointment of an independent monitor with targeted duties, and (ii) an injunction prohibiting transfer of funds or assets without Court approval, for the purpose of ensuring the ability of OAG to obtain satisfaction of the large sum OAG will seek as disgorgement at this conclusion of this action. The relief sought here is tailored directly to curbing the long history of persistent and repeated fraudulent conduct by the Trump Organization and is an appropriate exercise of the Court’s broad general equitable jurisdiction.

The appointment of an independent monitor is especially appropriate here. See, e.g., SEC v. Trabulse, 526 F. Supp. 2d 1008, 1019 (N.D. Cal. 2007) (appointing monitor due to “need for an objective party to oversee [defendant’s] conduct as he continues to manage funds”). Given the centrality of a particular cast of characters in the fraudulent conduct—including Mr. Trump, Mr. Weisselberg, Mr. McConney, Donald Trump, Jr. (as trustee), and Eric Trump—and the continued role of many of them in the closely held Trump Organization, the company’s leadership cannot be relied upon to ensure that financial submissions regarding Mr. Trump’s assets and net worth are truthful, are not misleading (including by omission of important facts), and are compliant with applicable accounting principles. That Mr. Trump—the person with beneficial ownership of the Trump Organization’s assets and effective control over them—continues to extol the Statements is confirmation that appointment of an independent monitor is warranted and appropriate.

In terms of the monitor’s duties, OAG urges the Court to ensure the monitor oversees any material submitted by the Trump Organization to any accounting firm compiling the 2022 Statement and any lenders and insurers that will receive the 2022 Statement in satisfaction of Mr. Trump’s continuing financial disclosure obligations to insure full and complete disclosure of all relevant information. The monitor should similarly oversee the contents of any submissions regarding Mr. Trump’s assets or net worth to any financial counterparty of the Trump Organization—including any schedule of assets and liabilities, any statement of net worth, or any similar submission. The purpose of such supervision would be to mitigate any further fraud and illegality in violation of § 63(12).

First, the oversight by the independent monitor should focus on ensuring that the accountants, lenders, and insurers9 receive from the Trump Organization all of the necessary and relevant information relating to the valuations in the Statement or similar submission – which, at a minimum, should include: (i) the company’s supporting data spreadsheet: (ii) any documents (including emails, articles, and market reports) cited in the supporting data spreadsheet; (iii) appraisals of any of the valued properties done in the past five years in the company’s possession; (iv) any filing made by or on behalf of any Defendant or affiliated entity with a government authority in the past five years that takes a position on the value of any property included in the Statement or similar submission, whether for tax purposes or otherwise; and (v) any and all documentation indicating the precise property interest owned, and any development limitations known or agreed to by the Trump Organization (including Mr. Trump and his trustees).

Second, the Court should use its equitable powers to ensure that the Trump Organization does not remove assets from the Court’s power during the pendency of this action. The Court’s broad equitable power in a § 63(12) action entails the authority to award disgorgement—based on the principle that no wrongdoer should retain ill-gotten gains. Greenberg, 27 N.Y.3d at 497-98. Indeed, disgorgement in civil fraud actions often includes an award of prejudgment interest as well—since a wrongdoer similarly ought not be permitted to retain the time-value of the funds she retained during the course of misconduct. See, e.g., S.E.C. v. First Jersey Securities, Inc., 101 F.3d 1450, 1477 (2d Cir. 1996); Hynes v. Iadarola, 221 A.D.2d 131, 135 (2d Dep’t 1996) (reversing denial of prejudgment interest in civil forfeiture action, noting that “fundamental fairness” accords with awarding prejudgment interest to deprive wrongdoer of ill-gotten gains).

The sums involved here are substantial because they are principally derived from substantial differences in interest rates on loans totaling in the hundreds of millions of dollars over a lengthy period of time (as well as profits earned on disposition of significant properties funded by such debt). See Compl. ¶¶ 21-22.

Given “the large sums of money involved” in OAG’s request for disgorgement, First Investors Corp., 156 Misc. 2d at 220, and the very recent creation of “Trump Organization II LLC,” the Court should enjoin the Trump Organization from transferring assets to any non-party affiliates or disposing of any assets without review by the monitor and approval by the Court during the pendency of this action to maintain the status quo. State v. Kozak, 91 Misc. 2d 394, 396 (Sup. Ct. N.Y. Cty. 1977) (granting Attorney General’s motion for preliminary injunction barring defendants from transferring or disposing of assets or property under their control, derived from the practices alleged in the verified complaint to be fraudulent).

For purposes of appointing an independent monitor, if the Court grants that relief, OAG will vet and propose two to three candidates for final selection by the Court. OAG will then work with the monitor and the Trump Organization to prepare a proposed order formally appointing the monitor and setting the terms of the monitor’s retention.

CONCLUSION

Based on the foregoing, OAG respectfully requests that the Court grant Plaintiff’s request for a preliminary injunction in its entirety, along with such other and further relief the Court deems necessary and appropriate.

Dated: New York, New York
October 13, 2022

Respectfully submitted,

LETITIA JAMES
Attorney General of the State of New York
By: _________________________
Kevin C. Wallace
Andrew Amer
Colleen K. Faherty
Alex Finkelstein
Wil Handley
Eric R. Haren
Louis M. Solomon
Stephanie Torre

Office of the New York State Attorney General
28 Liberty Street
New York, NY 10005
Phone: (212) 416-6376
[email protected]

Attorney for the People of the State of New York

_______________

Notes:

1 OAG raised these concerns as part of an exchange concerning service and time to respond to the Complaint. Those conversations did not resolve the issues. For the reasons set forth in the Faherty Affirmation, OAG requests that the order to show cause allow for electronic service of the summons and complaint on Donald J. Trump and Eric Trump. Faherty Aff. ¶ 88
 
2 In general, “[t]he purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits.” Icy Splash Food & Beverage, Inc. v. Henckel, 14 A.D.3d 595, 596 (2d Dep’t 2005). The decision of whether to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court. Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d 623, 625 (2d Dep’t 2011).
 
3 See also People v. 21st Century Leisure Spa, Int’l, 153 Misc. 2d 938, 942 (Sup. Ct. N.Y. Cnty. 1991) (enjoining owner of company through a temporary restraining order from transferring, withdrawing, or otherwise disposing of funds in bank accounts); New York v. Abortion Info. Agency, 323 N.Y.S.2d 597, 603 (Sup. Ct. N.Y. Cnty. 1971), aff’d, 37 A.D.2d 142 (1st Dep’t 1971) (enjoining defendants “from transferring or otherwise disposing of corporate assets or property” and appointing receiver to preserve assets); State of New York v. First Investors Corp., 156 Misc. 2d 209, 213 (Sup. Ct. N.Y. Cnty.) (imposing an asset freeze injunction on the defendants); People v. Allen, 2020 N.Y. Misc. LEXIS 443, *7-8, 2020 NY Slip Op 30292(U) (Sup. Ct. N.Y. Cnty., Feb. 4, 2020) (granting preliminary injunction against fund, halting distributions and freezing fund assets). 

4 See also Village of Pelham Manor v. Crea, 112 A.D.2d 415, 416 (2d Dep’t 1985) (noting that because the ordinance sued under authorizes injunctive relief against violations, “plaintiff was not required to come forward with proof of irreparable injury” to obtain a preliminary injunction); People v. Leasing Expenses Company, LLC, Index No. 452357/2020 (Sup. Ct. N.Y. Cnty.), slip op. at 3 (holding in a proceeding under Executive Law 63(12), unlike in private litigation, the attorney general “need not show irreparable injury, and the ‘equity’ to be served is primarily the public interest”); State v. Terry Buick, Inc., 137 Misc. 2d 290, 294 (Sup. Ct. Dutchess Cnty. 1987) (“Traditional concepts of irreparable damage which apply to private parties do not govern this public interest field.”).
 
5 Because the likelihood of success on OAG’s Executive Law § 63(12) fraud claim is substantial, and plainly sufficient to grant preliminary relief, OAG has not here separately briefed OAG’s likelihood of success on OAG’s Executive Law § 63(12) illegality claims. Suffice it to say, however, OAG has demonstrated through verified allegations numerous instances of falsified business records, false financial statements, and acts of insurance fraud in violation of the Penal Law provisions cited in the Complaint to establish a clear likelihood of success on its illegality claims as well. See Compl. ¶¶ 761-838.
 
6 Although there is no need to show irreparable harm when seeking a preliminary injunction to prevent further acts of fraud or illegality pendent lite pursuant to § 63(12), clearly such harm will occur absent the requested injunction because lenders and insurers will continue to make business decisions in reliance upon Defendants’ continued false and misleading asset valuations that cannot be retroactively undone. Lenders will continue to rely on the Trump Organization’s assertions concerning Mr. Trump’s assets and net worth in determining whether loan covenants have been met and whether additional credit should be extended, and if so, on what terms; insurers will similarly continue to rely on the Trump Organization’s assertions concerning Mr. Trump’s assets and net worth in determining whether policies should be renewed, and if so, on what terms. See, infra, at 2-3, 5.

7 Typically, each Statement is issued sometime on or after October of the year it covers, so the 2022 Statement is likely to be issued soon. See, e.g., NYSCEF Nos. 15 (2021 Statement issued October 29, 2021) 14 (2020 Statement issued January 11, 2021), and 13 (2019 Statement issued October 31, 2019).
 
8 The Trump Organization attempted unsuccessfully to water down these disclosure requirements during negotiations. Compl. at ¶¶ 744-45.
 
9 Unlike with lenders, the Trump Organization provided insurers with only a relatively fleeting glance at the Statements in a conference room at Trump Tower during annual renewal meetings. Faherty Aff. ¶ 64. The monitor can make certain that insurers receive for their files not only copies of the 2022 Statement if presented, but also the supporting material.
 
 

[admin]

Trump worker told FBI about moving Mar-a-Lago boxes on ex-president’s orders: Key witness and security-camera footage offer evidence of Trump’s actions after government subpoena, people familiar say
by Devlin Barrett and Josh Dawsey
Washington Post
Updated October 12, 2022 at 5:59 p.m. EDT|Published October 12, 2022 at 5:25 p.m. EDT

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A Trump employee has told federal agents about moving boxes of documents at Mar-a-Lago at the specific direction of the former president, according to people familiar with the investigation, who say the witness account — combined with security-camera footage — offers key evidence of Donald Trump’s behavior as investigators sought the return of classified material.

The witness description and footage described to The Washington Post offer the most direct account to date of Trump’s actions and instructions leading up to the FBI’s Aug. 8 search of the Florida residence and private club, in which agents were looking for evidence of potential crimes including obstruction, destruction of government records or mishandling classified information.

The people familiar with the investigation said agents have gathered witness accounts indicating that, after Trump advisers received a subpoena in May for any classified documents that remained at Mar-a-Lago, Trump told people to move boxes to his residence at the property. That description of events was corroborated by the security-camera footage, which showed people moving the boxes, said the people, who spoke on the condition of anonymity to discuss an ongoing investigation.

Spokespeople for the Justice Department and FBI declined to comment.

Trump spokesman Taylor Budowich declined to answer detailed questions for this article. “The Biden administration has weaponized law enforcement and fabricated a Document Hoax in a desperate attempt to retain political power,” Budowich said in a statement. “Every other President has been given time and deference regarding the administration of documents, as the President has the ultimate authority to categorize records, and what materials should be classified.”

Budowich accused the Justice Department of a “continued effort to leak misleading and false information to partisan allies in the Fake News,” and said that to do so “is nothing more than dangerous political interference and unequal justice. Simply put, it’s un-American.”

The employee who was working at Mar-a-Lago is cooperating with the Justice Department and has been interviewed multiple times by federal agents, according to the people familiar with the situation, who declined to identify the worker.

In the first interview, these people said, the witness denied handling sensitive documents or the boxes that might contain such documents. As they gathered evidence, agents decided to re-interview the witness, and the witness’s story changed dramatically, these people said. In the second interview, the witness described moving boxes at Trump’s request.

The witness is now considered a key part of the Mar-a-Lago investigation, these people said, offering details about the former president’s alleged actions and instructions to subordinates that could have been an attempt to thwart federal officials’ demands for the return of classified and government documents.

Multiple witnesses have told the FBI they tried to talk Trump into cooperating with the National Archives and Records Administration and the Justice Department as those agencies for months sought the return of sensitive or historical government records, people familiar with the situation said.

But entreaties from advisers and lawyers who pushed for Trump to hand the documents back fell on deaf ears with Trump, these people said, speaking on the condition of anonymity to discuss private conversations. Trump grew angry this spring after a House Oversight Committee investigation was launched, telling aides they’d “screwed up” the situation, according to people who heard his comments. “They’re my documents,” Trump said, according to an aide who spoke to him.

The details shared with The Post reveal two key parts of the criminal probe that until now had been shrouded in secrecy: an account from a witness who worked for and took directions from Trump, and the way that security footage from Mar-a-Lago has played an important role in buttressing witness accounts.

Together, those pieces of evidence helped convince the FBI and Justice Department to seek the court-authorized search of Trump’s residence, office and a storage room at Mar-a-Lago, which resulted in the seizure of 103 documents that were marked classified and had not been turned over to the government in response to the May subpoena. Some of the documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. The Aug. 8 search also yielded about 11,000 documents not marked classified.

The failure or possible refusal to return the classified documents in response to the subpoena is at the heart of the Justice Department’s Mar-a-Lago investigation, which is one of several high-profile, ongoing probes involving Trump. The former president remains the most influential figure in the Republican Party and talks openly about running for the White House again in 2024.

Within Trump’s orbit, there have been months of dueling accusations and theories about who may be cooperating with the federal government. Some of the former president’s closest aides have continued to work with Trump even as they have seen FBI agents show up at their houses to question them and serve subpoenas.

Within the Justice Department and FBI, the witness’s account has been a closely held secret as agents continue to gather evidence in the high-stakes investigation. In addition to wanting to keep the information they have gathered so far under wraps, people familiar with the situation said, authorities are also concerned that if or when the witness’s identity eventually becomes public, that person could face harassment or threats from Trump supporters.

In a filing to the Supreme Court on Tuesday, Justice Department lawyers appeared to allude to witness accounts and the video footage when they wrote: “The FBI uncovered evidence that the response to the grand jury subpoena was incomplete, that additional classified documents likely remained at Mar-a-Lago, and that efforts had likely been taken to obstruct the investigation.”

Since the Aug. 8 search, Trump has offered a number of public defenses of why documents with classified markings remained at Mar-a-Lago — saying he declassified the secret documents, suggesting that the FBI planted evidence during the search, and suggesting that as a former president he may have had a right to keep classified documents. National security law experts have overwhelmingly dismissed such claims, saying they range from far-fetched to nonsensical.

Officials at the National Archives began seeking the return of documents last year, after they came to believe that some presidential records from the Trump administration — such as letters from North Korean leader Kim Jong Un — were unaccounted for, and perhaps in Trump’s possession.

After months of back-and-forth, Trump agreed in January to turn over 15 boxes of material. When archivists examined the material, they found 184 documents marked classified, including 25 marked top secret, which were scattered throughout the boxes in no particular order, according to court filings.

That discovery suggested to authorities that Trump had not turned over all the classified documents in his possession. In May, a grand jury subpoena demanded the return of classified documents with a wide variety of markings, including a category used for secrets about nuclear weapons.

In response to that subpoena, Trump’s advisers met with government agents and prosecutors at Mar-a-Lago in early June, handing over a sealed envelope containing another 38 classified documents, including 17 marked top secret, according to court papers. According to government filings, Trump’s representatives claimed at the meeting that a diligent search had been conducted for all classified documents at the club.

That meeting, which included a visit to the storage room where Trump’s advisers said the relevant boxes of documents were kept, did not satisfy investigators, who were not allowed to inspect the boxes they saw in the storage room, according to government court filings.

Five days later, senior Justice Department official Jay Bratt wrote to Trump’s lawyers to remind them that Mar-a-Lago “does not include a secure location authorized for the storage of classified information.” Bratt wrote that it appears classified documents “have not been handled in an appropriate manner or stored in an appropriate location.”

“Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.”

Agents continued to gather evidence that Trump was apparently not complying with either government requests or subpoena demands. After significant deliberation, aware that it would be highly unusual for federal agents to search a former president’s home, they decided to seek a judge’s approval to do so.

That Aug. 8 search turned up, in a matter of hours, 103 documents marked classified, including 18 marked top secret, according to court papers. The stash included at least one document that described a foreign country’s military defenses, including its nuclear capabilities.

[admin]

Justice department asks court to reject appointment of Trump special master: Independent arbiter was tasked to inspect thousands of documents taken from Mar-a-Lago in August search by FBI
by Hugo Lowell in Washington
theguardian.com
Fri 14 Oct 2022 19.53 EDT

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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-- Brief of the United States, by Juan Antonio Gonazalez, U.S. Attorney, Matthew G. Olsen, Assistant Attorney General, and Jay I. Bratt, Chief, Counterintelligence and Export Control Section. Donald J. Trump, Plaintiff-Appellee, v. United States of America, Defendant-Appellant, On Appeal from the United States District Court for the Southern District of Florida, October 14, 2022

The US justice department has asked the 11th circuit court of appeals to void the appointment of the special master examining materials seized from Donald Trump’s Mar-a-Lago resort for privilege protections, arguing it impedes the criminal investigation into mishandling of sensitive documents.

In a 53-page brief filed on Friday, the justice department argues that the Trump-appointed US district court judge who oversees the case, Aileen Cannon, should never have granted the former president’s request to have a special master because he failed to demonstrate the need for such a process.

The full appeal from the justice department aims to capitalize on an earlier ruling from the 11th circuit that overturned part of Cannon’s special master order and allowed federal investigators to continue examining 103 documents marked classified while the special master continued reviewing the other documents that were seized.

“This court has already granted the government’s motion to stay that unprecedented order insofar as it relates to the documents bearing classification markings,” said the filing. “The court should now reverse the order in its entirety for multiple independent reasons.”

The justice department contends chiefly that the special master review should be shut down because Cannon misapplied the four-part “Richey” test used to determine whether she could intervene in the matter.

Cannon had determined in her original order that Trump had failed to satisfy the first test – whether he suffered “callous disregard” to his constitutional rights when the FBI searched the property on 8 August and seized thousands of documents – but granted the special master because he had met additional tests.

The justice department, incorporating the 11th circuit’s own reasoning into its argument, said Trump’s failure to satisfy the callous disregard standard alone should have resulted in the denial of his request to have a special master.

Even if the trial judge could be argued to have properly applied the Richey test, the department added, US district courts generally lack the injunctive power to prevent it from examining materials as part of a criminal investigation as Cannon had done.

“District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are resolved through ordinary criminal motion practice if and when charges are filed,” the brief said.

The full appeal seeking the removal of the special master marks a precarious moment for Trump.

Should the 11th circuit rule in favor of the justice department in this request, the former president’s only option to slow down the criminal probe would be to appeal to the US supreme court.

During the time that the seized materials have been before the special master, the justice department has been unable to use the documents in its investigation into the potential willful retention of national defense information, obstruction, and removal of government records.

The decision by the 11th circuit last month to exclude the 103 documents with classified markings from the special master process and allow federal prosecutors to use the records had allowed that part of the probe to recommence.

But the justice department has so far been barred from examining the remaining 11,000 documents seized from Mar-a-Lago that are still being examined by the special master until his review process is complete – an injunction that the government said was impeding the investigation.

The former president is unlikely to succeed at the supreme court should he lose at the 11th circuit, legal experts said – not least after the court swiftly rejected on Thursday his emergency petition asking to re-include the 103 documents marked classified in the special master review.

[admin]

Part 1 of 2

Brief of the United States
Donald J. Trump v. United States of America, No. 22-13005 No. 22-13005
October 14, 2022

Donald J. Trump v. United States of America, No. 22-13005
No. 22-13005

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
DONALD J. TRUMP,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.

On Appeal from the United States District Court
for the Southern District of Florida

BRIEF OF THE UNITED STATES

JUAN ANTONIO GONZALEZ
United States Attorney
Southern District of Florida
99 NE 4th Street, 8th Floor
Miami, FL 33132
305-961-9001

MATTHEW G. OLSEN
Assistant Attorney General

JAY I. BRATT
Chief, Counterintelligence and Export
Control Section

JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY M. SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
202-233-0986

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rules 26.1-1 and 28-1(b), the undersigned hereby certifies that the following have an interest in the outcome of this case:

American Broadcasting Companies, Inc. (DIS)
Associated Press
Bloomberg, LP
Bratt, Jay I.
Brill, Sophia
Cable News Network, Inc. (WBD)
Cannon, Hon. Aileen M.
Caramanica, Mark Richard
CBS Broadcasting, Inc (CBS)
Corcoran, M. Evan
Cornish, Sr., O’Rane M.
Dearie, Hon. Raymond J.
Dow Jones & Company, Inc. (DJI)
Edelstein, Julie
Eisen, Norman Larry
E.W. Scripps Company (SSP)
Finzi, Roberto
Fischman, Harris
Former Federal and State Government Officials
Fugate, Rachel Elise
Gonzalez, Juan Antonio
Gray Media Group, Inc. (GTN)
Gupta, Angela D.
Halligan, Lindsey
Inman, Joseph M.
Karp, Brad S.
Kessler, David K.
Kise, Christopher M.
Knopf, Andrew Franklin
Lacosta, Anthony W.
LoCicero, Carol Jean
McElroy, Dana Jane
Minchin, Eugene Branch
NBC Universal Media, LLC (CMCSA)
Patel, Raj K.
Rakita, Philip
Reeder, Jr., L. Martin
Reinhart, Hon. Bruce E.
Rosenberg, Robert
Seidlin-Bernstein, Elizabeth
Shapiro, Jay B.
Shullman, Deanna Kendall
Smith, Jeffrey M.
The New York Times Company (NYT)
The Palm Beach Post
Times Publishing Company
Tobin, Charles David
Trump, Donald J.
Trusty, James M.
United States of America
Wertheimer, Fred
WP Company, LLC

Dated: October 14, 2022 /s/ Sophia Brill
Sophia Brill

STATEMENT REGARDING ORAL ARGUMENT

The government respectfully submits that oral argument would assist the Court. In its October 5, 2022 order granting the government’s motion to expedite this appeal, the Court indicated that “the appeal will be assigned to a special merits panel,” which “will decide when and how to hear oral argument.”

TABLE OF CONTENTS

• CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
• DISCLOSURE STATEMENT ..................................................................................... c-1
• STATEMENT REGARDING ORAL ARGUMENT ................................................ i
• TABLE OF AUTHORITIES .......................................................................................... iv
• INTRODUCTION ............................................................................................................. 1
• STATEMENT OF JURISDICTION ............................................................................ 4
• STATEMENT OF ISSUES .............................................................................................. 4
• STATEMENT OF THE CASE ...................................................................................... 5
• A. Factual Background ................................................................................................. 5
• B. Procedural History .................................................................................................. 10
• 1. Initiation of Plaintiff’s suit..................................................................................... 10
• 2. The district court’s order and stay proceedings .................................................. 12
• 3. The special master proceedings ............................................................................ 16
• 4. Other appellate proceedings ................................................................................. 17
• C. Standards of Review ............................................................................................... 17
• SUMMARY OF ARGUMENT ...................................................................................... 18
• ARGUMENT...................................................................................................................... 20
• I. THE DISTRICT COURT ERRED IN EXERCISING EQUITABLE
JURISDICTION ................................................................................................................ 20
• A. Plaintiff Failed to Establish the “Foremost” Factor Needed for the
Exercise of Jurisdiction ................................................................................................. 22
• B. The Remaining Richey Factors Weigh Further Against the Exercise of
Jurisdiction ....................................................................................................................... 23
• II. THE DISTRICT COURT ERRED BY ENJOINING THE
GOVERNMENT FROM REVIEWING OR USING THE SEIZED
RECORDS ........................................................................................................................... 28
• A. Plaintiff Has No Plausible Claims of Executive Privilege ........................... 29
• 1. Plaintiff cannot invoke executive privilege to bar the Executive Branch’s
review and use of its own records ................................................................................ 29
• 2. United States v. Nixon forecloses any executive privilege claims ........................ 31
• 3. Any claim of executive privilege as to the records bearing classification
markings would fail for additional reasons ................................................................. 36
• B. Plaintiff Has No Plausible Claims of Attorney-Client Privilege That
Would Justify an Injunction ......................................................................................... 38
• C. The Government and the Public Suffer Irreparable Injury from the
Injunction Pending the Special-Master Review ..................................................... 40
• D. Plaintiff’s Purported Factual Disputes Are Irrelevant ................................... 43
• 1. Plaintiff’s suggestion that he might have declassified the seized records is
irrelevant .......................................................................................................................... 43
• 2. Plaintiff’s suggestion that he might have categorized seized records as
“personal” records under the PRA only weakens his executive privilege claims .. 45
• III. THE COURT SHOULD REVERSE THE DISTRICT COURT’S
REQUIREMENT THAT THE GOVERNMENT SUBMIT THE RECORDS
FOR A SPECIAL-MASTER REVIEW ....................................................................... 47
• CONCLUSION ................................................................................................................. 51
• CERTIFICATE OF COMPLIANCE .......................................................................... 52
• CERTIFICATE OF SERVICE ..................................................................................... 53

TABLE OF AUTHORITIES

Cases: Page:

• Al Odah v. United States,
• 559 F.3d 539 (D.C. Cir. 2009).......................................................................................... 50
• Bonner v. City of Prichard,
• 661 F.2d 1206 (11th Cir. 1981) ........................................................................................ 13
• BP P.L.C. v. Mayor and City Council of Baltimore,
• 141 S. Ct. 1532 (2021) ....................................................................................................... 50
• CIA v. Sims,
• 471 U.S. 159 (1985) ........................................................................................................... 37
• Cobbledick v. United States,
• 309 U.S. 323 (1940) ...................................................................................................... 41-42
• Cooter & Gell v. Hartmarx Corp.,
• 496 U.S. 384 (1990) ........................................................................................................... 18
• Deaver v. Seymour,
• 822 F.2d 66 (D.C. Cir. 1987) ............................................................................................ 26
• Dep’t of Navy v. Egan,
• 484 U.S. 518 (1988) ..................................................................................................... 31, 37
• Douglas v. City of Jeanette,
• 319 U.S. 157 (1943) ........................................................................................................... 21
• Hunsucker v. Phinney,
• 497 F.2d 29 (5th Cir. 1974) .................................................................................. 13, passim
• In re Grand Jury Subpoenas,
• 454 F.3d 511 (6th Cir. 2006) ............................................................................................ 25
• In re Sealed Case,
• 121 F.3d 729 (D.C. Cir. 1997).......................................................................................... 32
• In re Sealed Search Warrant,
• No. 20-MJ-3278, 2020 WL 6689045 (S.D. Fla. Nov. 2, 2020) aff’d,
• 11 F.4th 1235 (11th Cir. 2021) ......................................................................................... 25
• In re Search of 4801 Fyler Ave.,
• 879 F.2d 385 (8th Cir. 1989) ...................................................................................... 22, 23
• In re Search Warrant Issued June 13, 2019,
• 942 F.3d 159 (4th Cir. 2019) ............................................................................................ 48
• In re Wild,
• 994 F.3d 1244 (11th Cir. 2021) ........................................................................................ 42
• Jones v. Fransen,
• 857 F.3d 843 (11th Cir. 2017) .......................................................................................... 49
• Judicial Watch v. NARA,
• 845 F. Supp. 2d 288 (D.D.C. 2012) ................................................................................ 46
• Keystone Driller Co. v. General Excavator Co.,
• 290 U.S. 240 (1933) ........................................................................................................... 38
• Mohawk Industries, Inc. v. Carpenter,
• 558 U.S. 100 (2009) ........................................................................................................... 50
• Munaf v. Geren,
• 553 U.S. 674 (2008) ........................................................................................................... 27
• Murphy v. Sec’y, U.S. Dep’t of Army,
• 769 F. App’x. 779 (11th Cir. 2019) .................................................................................. 37
• *Nixon v. Administrator of General Services,
• 433 U.S. 425 (1977) ................................................................................................. 3, passim
• Ramirez v. Collier,
• 142 S. Ct. 1264 (2022) ....................................................................................................... 38
• Ramsden v. United States,
• 2 F.3d 322 (9th Cir. 1993) .......................................................................................... 24, 26
• *Richey v. Smith,
• 515 F.2d 1239 (5th Cir. 1975) .............................................................................. 13, passim
• Snepp v. United States States,
• 544 U.S. 507 (1980) ........................................................................................................... 51
• Suarez-Valdez v. Shearson Leahman/American Express, Inc.,
• 858 F.2d 648 (11th Cir. 1988) .......................................................................................... 51
• Trump v. Thompson,
• 20 F. 4th 10 (D.C. Cir. 2021) ........................................................................................... 32
• Trump v. Thompson,
• 142 S. Ct. 680 (2022) ................................................................................................... 29, 32
• Trump v. United States,
• 2022 WL 4366684 (11th Cir. Sept. 21, 2022) ....................................................... 2, passim
• Trump v. Vance,
• 140 S. Ct. 2412 (2020) ....................................................................................................... 32
• United States v. Asgari,
• 940 F.3d 188 (6th Cir. 2019) ............................................................................................ 41
• United States v. Chapman,
• 559 F.2d 402 (5th Cir. 1977) ................................................................................ 16, passim
• United States v. Daoud,
• 755 F.3d 479 (7th Cir. 2014) ............................................................................................ 41
• United States v. Dionisio,
• 410 U.S. 1 (1973) ............................................................................................................... 41
• United States v. Harte-Hanks Newspapers,
• 254 F.2d 366 (5th Cir. 1958) ............................................................................................ 23
• *United States v. Nixon,
• 418 U.S. 683 (1974) ................................................................................................. 3, passim
• United States v. O’Hara,
• 301 F.3d 563 (7th Cir. 2002) ............................................................................................ 41
• United States v. Reynolds,
• 345 U.S. 1 (1953) ............................................................................................................... 41
• United States v. Search of Law Office, Residence, & Storage Unit,
• 341 F.3d 404 (5th Cir. 2003) ............................................................................................ 26
• United States v. Truong Dinh Hung,
• 629 F.2d 908 (4th Cir. 1980) ............................................................................................ 44
• Vital Pharmaceuticals, Inc. v. Alfieri,
• 23 F.4th 1282 (11th Cir. 2022) ............................................................................. 17, 18, 28
• Whole Woman’s Health v. Jackson,
• 142 S. Ct. 522 (2021) ......................................................................................................... 49
• Yamaha Motor Corp. v. Calhoun,
• 516 U.S. 199 (1999) ........................................................................................................... 50
• Younger v. Harris,
• 401 U.S. 37 (1971) ....................................................................................................... 21, 25
• Statutes & Other Authorities: Page:
• 18 U.S.C. § 793............................................................................................................ 8, passim
• 18 U.S.C. § 1519 ......................................................................................................... 8, 33, 44
• 18 U.S.C. § 2071 ......................................................................................................... 8, passim
• 28 U.S.C. § 1291 ..................................................................................................................... 4
• 28 U.S.C. § 1292 ......................................................................................................... 4, passim
• 44 U.S.C. § 2201 ............................................................................................................... 5, 46
• 44 U.S.C. § 2202 ............................................................................................................... 5, 24
• 44 U.S.C. § 2203 ............................................................................................................... 5, 45
• 44 U.S.C. § 2204 ..................................................................................................................... 6
• 44 U.S.C. § 2205 ..................................................................................................................... 6
• Exec. Order 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010) ............................................ 5, passim

Statutes & Other Authorities: Page:

• Fed. R. App. P. 32 ................................................................................................................ 52
• Fed. R. Crim. P. 41 ..................................................................................................... 4, passim
• Fed. R. Civ. P. 53 ............................................................................................................ 11, 21
• Fed. R. Civ. P. 65 .................................................................................................................. 14

INTRODUCTION

This appeal stems from an unprecedented order by the district court restricting an ongoing criminal investigation by prohibiting the Executive Branch from reviewing and using evidence—including highly classified government records—recovered in a court-authorized search. Before the search, Plaintiff, former President Donald J. Trump, had represented in response to a grand-jury subpoena that he had returned all records bearing classification markings. The government applied for a search warrant after developing evidence that Plaintiff’s response to the grand-jury subpoena was incomplete and that efforts may have been undertaken to obstruct the investigation. A magistrate judge found probable cause to believe that a search of Plaintiff’s premises would uncover evidence of crimes, including the unauthorized retention of national defense information and obstruction of justice. The government executed its search in accordance with filter procedures approved by the magistrate judge to ensure protection of any materials that might be subject to attorney-client privilege. The search recovered, among other evidence, roughly 100 documents bearing classification markings, including markings reflecting the highest classification levels and extremely restricted distribution.

Two weeks later, Plaintiff initiated this civil action requesting the appointment of a special master to review claims of attorney-client and executive privilege and an injunction barring the government from further review and use of the seized records in the meantime, in addition to raising claims for return of property. District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are resolved through ordinary criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief Plaintiff sought, enjoining further review or use of any seized materials, including those bearing classification markings, “for criminal investigative purposes” pending a special-master review process that will last months. DE.64:23-24. This Court has already granted the government’s motion to stay that unprecedented order insofar as it relates to the documents bearing classification markings. The Court should now reverse the order in its entirety for multiple independent reasons.

Most fundamentally, the district court erred in exercising equitable jurisdiction to entertain Plaintiff’s action in the first place. The exercise of equitable jurisdiction over an ongoing criminal investigation is reserved for exceptional circumstances, and Plaintiff failed to meet this Court’s established standards for exercising that jurisdiction here. The district court itself acknowledged that there has been no showing that the government acted in “callous disregard” of Plaintiff’s rights. As a panel of this Court rightly determined, that by itself “is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.” Trump v. United States, 2022 WL 4366684, at *7 (11th Cir. Sept. 21, 2022) (granting motion to stay). The remaining factors under this Court’s precedent likewise dictate that the district court’s exercise of jurisdiction was error. The Court should therefore vacate the district court’s order with instructions to dismiss Plaintiff’s civil action.

Even if the district court properly exercised jurisdiction, it erred in ordering a special-master review for claims of executive and attorney-client privilege and enjoining the government’s use of the seized records in the meantime. Plaintiff has no basis to assert executive privilege to preclude review of Executive Branch documents by “the very Executive Branch in whose name the privilege is invoked.” Nixon v. Administrator of General Services, 433 U.S. 425, 447-48 (1977) (Nixon v. GSA). Even if such an assertion could be plausible in some circumstances, executive privilege is a qualified privilege that is overcome where, as here, there is a “demonstrated, specific need” for evidence in criminal proceedings. United States v. Nixon, 418 U.S. 683, 713 (1974). And although that conclusion applies to all of the seized records, it is especially true as to the records bearing classification markings because those records are central to—indeed, the very objects of—the government’s ongoing criminal investigation.

Nor has Plaintiff asserted a claim of personal attorney-client privilege that would justify the district court’s order. He has no plausible claim of such a privilege with respect to the records bearing classification markings or any other government documents related to his official duties. And neither Plaintiff nor the district court demonstrated why the filter procedures here were insufficient to protect any potential claims of personal privilege with respect to any remaining documents. The Court should therefore reverse the district court’s injunction and end the special master’s review.

STATEMENT OF JURISDICTION

The district court purported to exercise jurisdiction pursuant to Federal Rule of Criminal Procedure 41(g) and its equitable jurisdiction. On September 5, 2022, the district court entered an order enjoining the government from further review and use of the seized records for criminal investigative purposes pending review by a special master of Plaintiff’s claims of executive and attorney-client privilege. DE.64. On September 8, 2022, the government filed a timely appeal. DE.68. This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and 28 U.S.C. § 1291. See infra Part III.

STATEMENT OF ISSUES

1. Whether the district court erred in exercising jurisdiction over Plaintiff’s request for injunctive and other relief to constrain the government’s review and use of all records seized pursuant to a court-authorized search in an ongoing criminal investigation.

2. Whether the district court erred by enjoining the government from reviewing and using records seized during that search for criminal investigative purposes, including records bearing classification markings, pending a months-long special-master review of Plaintiff’s claims of executive and attorney-client privilege.

3. Whether the district court erred by ordering a special-master review of all seized records, including records bearing classification markings, where Plaintiff has no plausible claims of executive privilege and where the government implemented filter procedures to identify and protect attorney-client communications.

STATEMENT OF THE CASE

A. Factual Background

Plaintiff’s term of office ended in January 2021. Over the next year, the National Archives and Records Administration (NARA) endeavored to recover what appeared to be missing records subject to the Presidential Records Act (PRA), 44 U.S.C. § 2201 et seq. DE.48-1:6. The PRA provides that the United States retains “complete ownership, possession, and control of Presidential records,” 44 U.S.C. § 2202, which include all records “created or received by the President” or his staff “in the course of conducting activities which relate to or have an effect upon” the President’s official duties, id. § 2201(2). The PRA specifies that when a President leaves office, NARA “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” Id. § 2203(g)(1).

In response to repeated requests from NARA, Plaintiff eventually provided NARA with 15 boxes of records in January 2022. DE.48-1:6. NARA discovered that the boxes contained “items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.” Id. Material is marked as Top Secret if its unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage” to national security. Exec. Order 13,526 § 1.2(1), 75 Fed. Reg. 707, 707 (Jan. 5, 2010).

NARA referred the matter to the Department of Justice (DOJ), noting that highly classified records appeared to have been improperly transported and stored. MJ- DE.125:7-8.1 DOJ then sought access from NARA to the 15 boxes under the PRA’s procedures governing presidential records in NARA’s custody. DE.48-1:6-7; see 44 U.S.C. § 2205(2)(B). Plaintiff, after receiving notification of the government’s request, requested multiple extensions of the production date and purported to make “a protective assertion of executive privilege” with regard to the materials. DE.48-1:7. On May 10, 2022, NARA explained to Plaintiff that any assertion of executive privilege would be overcome by the need for evidence in a criminal investigation and informed him that the records would be produced to the Federal Bureau of Investigation (FBI). DE.48-1:9. Plaintiff did not pursue any claim of executive privilege in court, see 44 U.S.C. § 2204(e), and he did not suggest that any documents bearing classification markings had been declassified.

During this time, the FBI developed evidence that additional boxes remaining at Plaintiff’s residence at the Mar-a-Lago Club in Palm Beach, Florida, were also likely to contain classified information.2 On May 11, 2022, Plaintiff’s counsel was served with a grand-jury subpoena for “[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.” DE.48-1:11.

In response, Plaintiff’s counsel and his custodian of records produced an envelope containing 37 documents bearing classification markings. MJ-DE.125:20-21.3 Plaintiff’s representatives did not assert any claim of privilege and did not suggest that any documents bearing classification markings had been declassified. To the contrary, the envelope had been wrapped in tape in a manner “consistent with an effort to handle the documents as if they were still classified.” MJ-DE.125:22. Some of the documents in the envelope bore classification markings at the highest levels, including additional compartmentalization. MJ-DE.125:21. Plaintiff’s counsel represented that the records came from a storage room at Mar-a-Lago; that all records removed from the White House had been placed in that storage room; and that no such records were in any other location at Mar-a-Lago. MJ-DE.125:20-22. Plaintiff’s custodian produced a written certification “on behalf of the Office of Donald J. Trump” that a “diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification.” DE.48-1:16.

The FBI then uncovered evidence that the response to the grand-jury subpoena was incomplete, that classified documents likely still remained at Mar-a-Lago, and that efforts may have been undertaken to obstruct the investigation. On August 5, 2022, the government applied to a magistrate judge in the Southern District of Florida for a search warrant, citing 18 U.S.C. § 793 (willful retention of national defense information), 18 U.S.C. § 2071 (concealment or removal of government records), and 18 U.S.C. § 1519 (obstruction of justice). MJ-DE.57:3. The government submitted a detailed affidavit demonstrating the bases for finding probable cause that evidence of those crimes would be found at Mar-a-Lago. MJ-DE.125. Magistrate Judge Reinhart found probable cause and authorized the government to seize “[a]ll physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, 1519,” including, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes . . . in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and container/boxes”; and “[a]ny government and/or Presidential Records created” during Plaintiff’s term of office. MJ-DE.125.

Magistrate Judge Reinhart also approved the government’s proposed filter protocols for handling any materials potentially subject to attorney-client privilege. MJDE. 125:31-32. The filter protocols provided that special agents assigned to a filter team would conduct the search of Plaintiff’s office and would “identify and segregate documents or data containing potentially attorney-client privileged information.” MJDE. 125:31. “If at any point the law-enforcement personnel assigned to the investigation . . . identif[ied] any data or documents that they consider may be potentially attorney-client privileged,” they were required to “cease the review” of the material and “refer the materials to the [filter team] for further review.” Id. Any document deemed to be “potentially attorney-client privileged” was barred from disclosure to the investigative team. Id. The filter procedures specified that a filter attorney could apply ex parte to the court for a determination of privilege, defer seeking court intervention, or disclose the document to the potential privilege holder to obtain the potential privilege holder’s position and submit any disputes to the court. MJDE. 125:31-32.

The government executed the search on August 8, 2022. The investigative team elected for the filter team agents to conduct the initial search of the storage room in addition to Plaintiff’s office, using the same filter protocols. DE.40:3. The search recovered roughly 13,000 documents totaling approximately 22,000 pages from the storage room and Plaintiff’s private office, including roughly 100 documents bearing classification markings, with some indicating the highest levels of classification and extremely limited distribution. See DE.116-1 (inventory); DE.48-1:18 (photograph).4 In some instances, even FBI counterintelligence personnel and DOJ attorneys required additional clearances to review the seized documents. DE.48:12-13.

B. Procedural History

1. Initiation of Plaintiff’s suit

On August 22, two weeks after the search, Plaintiff initiated a civil action in the Southern District of Florida, filing a pleading styled as a “Motion for Judicial Oversight and Additional Relief.” DE.1. Among other things, Plaintiff asked the district court to appoint a special master to adjudicate potential claims of executive and attorney-client privilege and to enjoin DOJ from further review and use of the seized records. Id. The cover sheet accompanying Plaintiff’s filing described his cause of action as a “[m]otion for appointment of Special Master and other relief related to anticipated motion under F. R. Crim. P. 41(g),” DE.1-1, but Plaintiff’s motion described no basis on which he was invoking the district court’s jurisdiction. After the district court directed Plaintiff to provide a supplemental filing elaborating on, inter alia, the asserted basis for the exercise of the court’s jurisdiction, DE.10, Plaintiff asserted that the court had jurisdiction pursuant to “the Court’s equitable and ancillary jurisdiction, as well as Federal Rule of Civil Procedure 53,” DE.28:1; see also DE.28:8.5 Plaintiff also described potential proceedings pursuant to Rule 41(g), which states that a “person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” See DE.28:4, DE.28:8-10.

On August 27, before receiving a response from the government, the district court issued an order setting out its “preliminary intent to appoint a special master.” DE.29. At the court’s direction, the investigative team and filter team filed notices on August 30 explaining the status of their respective reviews of the seized materials, along with detailed lists of the seized property in each team’s custody. DE.39; DE.40; see DE.29:2.6

The filter team explained that it undertook the initial search of Plaintiff’s office and the storage room, taking “a broad view of potentially privileged information, to include any documents to, from, or even referencing an attorney (regardless of whether the document appeared to capture communications to or from an attorney for the purpose of seeking legal advice and regardless of who the attorney represented),” and “treat[ing] any legal document as potentially privileged.” DE.40:3-4. The filter team also set forth the steps it proposed to resolve any potential attorney-client privilege disputes, noting that only a limited number of the materials it had segregated appeared to be even potentially privileged. DE.40:7-9. The filter team also described two instances in which members of the investigative team followed the filter protocol and ceased review of certain materials, providing them to the filter team because they fit the filter protocols’ broad prophylactic criteria for identifying materials that might be subject to attorney-client privilege. DE.40:5-7 & n.6.

2. The district court’s order and stay proceedings

a. On September 5, 2022, the district court granted Plaintiff’s motion in large part, ordering that a “special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.” DE.64:23. The district court further “ENJOINED” the government from “further review and use of any of the materials seized . . . for criminal investigative purposes pending resolution of the special master’s review.” Id. The court stated that the government “may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.” DE.64:24.

The district court acknowledged that the exercise of equitable jurisdiction to restrain a criminal investigation is “reserved for ‘exceptional’ circumstances.” DE.64:8 (quoting Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974)).7 The court also found that Plaintiff had not shown that the court-authorized search was in “callous disregard” of Plaintiff’s constitutional rights. DE.64:9. But the court concluded that the other considerations set forth in Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975), favored the exercise of jurisdiction, principally because the seized materials included some of Plaintiff’s “personal documents.” DE.64:9-12. The court similarly found that Plaintiff had standing because he had made “a colorable showing of a right to possess at least some of the seized property,” namely, his personal effects and records potentially subject to personal attorney-client privilege. DE.64:13.

The district court found that “review of the seized property” was necessary to adjudicate Plaintiff’s claims for return of property and potential assertions of privilege. DE.64:14-19. As to attorney-client privilege, the court concluded that further review would ensure that the filter process approved by Magistrate Judge Reinhart had not overlooked privileged material. DE.64:15-16. The court did not resolve the government’s arguments that a former President cannot successfully assert executive privilege to prevent the Executive Branch from reviewing its own records and that any assertion of privilege would in any event be overcome here by the government’s demonstrated, specific need for evidence in criminal investigation. Instead, the court stated only that “even if any assertion of executive privilege by Plaintiff ultimately fails,” he should be allowed “to raise the privilege as an initial matter” during the special-master review. DE.64:17-18.

The court stated that an injunction against the government’s review and use of the seized records for criminal investigative purposes was appropriate “in natural conjunction with th[e] appointment [of the special master], and consistent with the value and sequence of special master procedures.” DE.64:1. The court determined that injunctive relief was consistent with Federal Rule of Civil Procedure 65, stating that Plaintiff had established “a likelihood of success on the merits of his challenge to the [filter team] and its protocol.” DE.64:20 (internal quotations and brackets omitted). The court further stated that Plaintiff had “sufficiently established irreparable injury” due to “the risk that the Government’s filter review process will not adequately safeguard Plaintiff’s privileged and personal materials.” DE.64:21. Finally, the court concluded that “the public and private interests at stake support a temporary enjoinment on the use of the seized materials for investigative purposes.” DE.64:22.

b. On September 8, the government filed a notice of appeal from the district court’s September 5 order, DE.68, and moved the district court for a partial stay of the order as it applied to records bearing classification markings, DE.69. In support of its motion, the government submitted a declaration from the Assistant Director of the FBI’s Counterintelligence Division explaining that the Intelligence Community’s national security review of these records was “inextricably linked” to the criminal investigation, and that the court’s injunction irreparably harmed the government’s ability to assess the full scope of the risk to national security posed by the improper storage of these records. DE.69-1:5.

On September 15, the district court denied the government’s motion for a partial stay. DE.89. The court declined to address the government’s argument that the classified records are not subject to any plausible claim for return or assertion of privilege. Instead, the court referred generally to “factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials.” DE.89:4. The court reiterated that the injunction in its September 5 order preventing the government from using those records for criminal investigative purposes was necessary “to reinforce the value of the Special Master.” DE.89:7.

c. On September 16, the government asked this Court for a partial stay of the district court’s September 5 order, again to the extent it applied to records bearing classification markings. On September 21, a three-judge panel granted the government’s motion and stayed the order “to the extent it enjoins the government’s use of the classified documents and requires the government to submit the classified documents to the special master for review.” Trump, 2022 WL 4366684, at *12.

The Court agreed with the government that “the district court likely erred in exercising its jurisdiction to enjoin the United States’s use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review.” Id. at *7. The Court explained that when a person seeks the return of seized property in a pre-indictment posture, the action is “governed by equitable principles” regardless of whether it is based on Federal Rule of Criminal Procedure 41(g) or the district court’s general equitable jurisdiction. Id. at *7 (quoting Richey, 515 F.2d at 1243). The Court then turned to “the ‘foremost consideration’ in determining whether a court should exercise its equitable jurisdiction,” which is whether the government “‘displayed a callous disregard for constitutional rights’ in seizing the items at issue.” Id. (quoting Richey, 515 F.2d at 1243-44, and United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977)) (alteration omitted). The Court emphasized the district court’s conclusion “that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights,” and that “[n]o party contests [this] finding.” Id. The Court held that “[t]he absence of this ‘indispensable’ factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.” Id. (quoting Chapman, 559 F.2d at 406) (alteration omitted).

Although it held that the first Richey factor was dispositive, the Court considered the remaining Richey factors “for the sake of completeness” as applied to the records bearing classification markings. Id. It concluded that “none of the Richey factors favor exercising equitable jurisdiction over this case.” Id. at *9.

3. The special master proceedings

While the government’s stay motions were pending, the special master review process commenced. On September 15, the district court appointed Senior District Judge Raymond Dearie, who had been proposed by Plaintiff, as special master, DE.91; see DE.83:2, and set forth the promised “exact details and mechanics of []his review process,” DE.64:23. Among other things, the court ordered the government to provide Plaintiff’s counsel with copies of all non-classified documents and to make the records bearing classification markings available for review not only by the special master, but also by Plaintiff’s counsel. DE.91:4. The court set a deadline of November 30, 2022, for the special master to complete his review and make recommendations to the district court. DE.91:5. The order also states that “[t]he parties may file objections to, or motions to adopt or modify, the Special Master’s scheduling plans, orders, reports, or recommendations.” DE.91:6. The district court has since sua sponte extended the November 30 deadline to December 16. DE.125:5.

4. Other appellate proceedings

On October 4, Plaintiff filed an application in the Supreme Court seeking to vacate in part this Court’s partial stay, asserting that this Court lacked jurisdiction to review the portion of the district court’s September 5 order requiring that the records bearing classified markings be submitted to the special master. On October 13, the Supreme Court denied the application. Trump v. United States, No. 22A283.

C. Standards of Review

This Court reviews a district court’s decision to exercise equitable jurisdiction over an ongoing criminal investigation for abuse of discretion. Richey, 515 F.2d at 1243. The Court likewise “review[s] for abuse of discretion a ruling on a motion for a preliminary injunction.” Vital Pharmaceuticals, Inc. v. Alfieri, 23 F.4th 1282, 1288 (11th Cir. 2022). A district court “necessarily abuse[s] its discretion if it base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); see also Vital Pharmaceuticals, 23 F.4th at 1288 (similar). The Court “review[s] de novo questions of [its own] jurisdiction.” Vital Pharmaceuticals, 23 F. 4th at 1288 (internal quotations omitted).

SUMMARY OF ARGUMENT

I. The district court erred by exercising equitable jurisdiction in this case. The exercise of such jurisdiction over a pre-indictment criminal investigation is limited to exceptional cases. Under this Court’s precedent, it requires, at a minimum, a showing that the government callously disregarded Plaintiff’s constitutional rights. Nothing like this was shown in this case, as the district court acknowledged.

The remaining equitable factors weigh against jurisdiction as well. Plaintiff has shown no need for the materials at issue. Nor has he shown any likelihood that he will be irreparably harmed by adhering to the ordinary process in which any challenges to the government’s use of evidence recovered in a search are raised and resolved— through standard motions practice in criminal proceedings in the event that charges are brought. This Court should therefore vacate the district court’s September 5 order in its entirety with instructions to dismiss the case.

II. Even if it properly exercised jurisdiction, the district court erred in enjoining the government from further review and use of the seized records pending a special- master review of Plaintiff’s claims of executive and attorney-client privilege. Executive privilege exists “for the benefit of Republic,” not any President as an individual, and Plaintiff cannot successfully invoke the privilege to prevent a review of Executive Branch documents by “the very Executive Branch in whose name the privilege is invoked.” Nixon v. GSA, 433 U.S. at 447-49. Even if Plaintiff could assert such a claim, it would be overcome here by the government’s “demonstrated, specific need” for evidence in a criminal investigation. United States v. Nixon, 418 U.S. at 713. The government’s need for the records bearing classification markings is especially compelling because those records are the very object of the government’s investigation of potential violations of 18 U.S.C. § 793.

Nor was an injunction necessary to protect Plaintiff’s potential claims of attorney-client privilege. The government’s filter team had already segregated any records potentially covered by the privilege, and its filter procedures barred disclosure of those records to the investigative team unless or until either Plaintiff declined to assert attorney-client privilege or the court adjudicated any privilege disputes.

None of the other factors governing the issuance of a preliminary injunction supported the extraordinary relief granted by the district court. Plaintiff failed to demonstrate that he would suffer irreparable harm absent an injunction, and the injunction overwhelmingly harms the government and the public interest. Lastly, none of the factual disputes suggested by Plaintiff supports any entitlement to injunctive relief. His suggestion that he could have declassified the records bearing classification markings is unsubstantiated and irrelevant here, and his suggestion that he could have designated government records as his “personal” records under the PRA would only undermine any claim of executive privilege.

III. For those reasons, both the injunction and the special-master review ordered by the district court were unwarranted and should be reversed. This Court has jurisdiction to address the special-master review for at least three independent reasons. First, as the Court concluded in granting a partial stay, the Court has pendent jurisdiction to review the special-master portion of the order below because it is “inextricably intertwined” with the concededly appealable injunction. Trump, 2022 WL 4366684, at *6 n.3. Second, 28 U.S.C. § 1292(a)(1) provides for interlocutory review of district court “orders” granting injunctions. Appellate jurisdiction thus lies over the entire order granting an injunction, as the Supreme Court has held in interpreting other statutes granting jurisdiction to review particular types of “orders.” Third, the collateral order doctrine provides an independent basis for appellate jurisdiction over orders requiring disclosure of classified information.