Trump lashes out at Gov. Doug Ducey following certification

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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.

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Part 2 of 2

ARGUMENT

I. THE DISTRICT COURT ERRED IN EXERCISING EQUITABLE JURISDICTION

District courts have no general equitable authority to superintend federal criminal investigations. A district court’s exercise of civil equitable jurisdiction to constrain an ongoing criminal investigation prior to indictment is limited to “exceptional” circumstances. Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974). That is consistent with the “familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.” Douglas v. City of Jeanette, 319 U.S. 157, 163 (1943); see also Younger v. Harris, 401 U.S. 37, 43-44 (1971). Whether a plaintiff seeks to invoke a district court’s jurisdiction based on Rule 41(g) or “the general equitable jurisdiction of the federal courts,”8 this Court has instructed that a district court must consider four factors before exercising jurisdiction to entertain a preindictment motion for return of property. Richey, 515 F.2d at 1243-44. These factors are: (1) whether the government has “displayed ‘a callous disregard for the constitutional rights’” of the plaintiff; (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).

Plaintiff’s uncontested failure to satisfy the first factor—which this Court has described as “foremost” and even “indispensab[le],” Chapman, 559 F.2d at 406—is reason enough to conclude that the district court erred by exercising jurisdiction in this case. The remaining Richey factors likewise do not support the district court’s exercise of jurisdiction.

A. Plaintiff Failed to Establish the “Foremost” Factor Needed for the Exercise of Jurisdiction

As the stay panel observed, the first Richey factor—whether the government displayed a “callous disregard” for constitutional rights—is both the “foremost consideration” and is “indispensab[le].” Trump, 2022 WL 4366684, at *7 (quoting Chapman, 559 F.2d at 406). That factor is wholly absent here. To the contrary, the government first sought these records through voluntary requests. DOJ then obtained a subpoena and gave Plaintiff a chance to return all responsive records. Only when investigators learned that Plaintiff’s response was likely incomplete did they seek a search warrant. A magistrate judge issued that warrant after finding probable cause, based on the government’s lengthy affidavit, that evidence of multiple criminal violations would be found at Plaintiff’s residence. MJ-DE.125. The records at issue here are the documents recovered pursuant to that court-approved warrant, after earlier attempts to retrieve them had failed. The district court accordingly determined that Plaintiff had demonstrated no “callous disregard” of his rights. DE.64:9; see, e.g., Hunsucker, 497 F.2d at 34 (“since the search in issue was conducted pursuant to a warrant issued in the normal manner,” the court could not “say that the [underlying] action . . . involved a callous disregard for constitutional rights” (internal quotations and alteration marks omitted)); In re Search of 4801 Fyler Ave., 879 F.2d 385, 388 (8th Cir. 1989) (“officers acted in objective good faith, rather than with callous disregard for” plaintiff’s rights, where agents “first obtained a warrant . . . using a lengthy and detailed affidavit . . . to establish probable cause”).

This Court correctly 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.” Trump, 2022 WL 4366684, at *7 (quoting Chapman, 559 F.2d at 406) (alteration omitted); see also United States v. Harte-Hanks Newspapers, 254 F.2d 366, 369 (5th Cir. 1958) (“suppression of evidence prior to an indictment should be considered only when there is a clear and definite showing that constitutional rights have been violated”); In re Search of 4801 Fyler Ave., 879 F.2d at 387 (“jurisdiction is proper only upon a showing of callous disregard of the [F]ourth [A]mendment”). Although the Court had occasion to address only the district court’s exercise of jurisdiction with regard to the documents bearing classification markings, the same analysis applies to all of the seized materials—and, thus, the entire proceeding. And as the Court held, that by itself is sufficient reason to conclude that the district court erred in exercising jurisdiction over this action. Trump, 2022 WL 4366684, at *7.

B. The Remaining Richey Factors Weigh Further Against the Exercise of Jurisdiction

As the Court explained with respect to the documents bearing classification markings, the remaining Richey factors likewise weighed against the exercise of jurisdiction. Trump, 2022 WL 4366684, at *7-9. Similar logic applies to the other seized materials, and the district court abused its discretion in concluding otherwise.

The second Richey factor considers “whether the plaintiff has an individual interest in and need for the material whose return he seeks.” 515 F.2d at 1243. Plaintiff has no individual interest in any official government records: the government “retain[s] complete ownership, possession, and control of Presidential records,” 44 U.S.C. § 2202, and records bearing classification markings in particular contain information that “is owned by, produced by or for, or is under the control of the” government, Exec. Order No. 13,526, § 1.1(2), 75 Fed. Reg. at 707. Moreover, Plaintiff made no showing of a need for the return of any personal documents that were seized. See Ramsden v. United States, 2 F.3d 322, 325-26 (9th Cir. 1993) (mere interest in property does not indicate a need for its return). The district court simply assumed Plaintiff’s interest in and need for some unidentified portion of the records “based on the volume and nature of the seized material.” DE.64:9. But it was Plaintiff’s burden to justify the exercise of jurisdiction, and he has identified nothing about the volume or the nature of the seized material to suggest that this case presents the “exceptional” circumstances, Hunsucker, 497 F.2d at 32, that could justify the invocation of equitable jurisdiction over a pre-indictment criminal investigation.

The third Richey factor asks “whether the plaintiff would be irreparably injured by denial of the return of the property.” 515 F.2d at 1243. Plaintiff failed to establish any injury—let alone any irreparable injury—caused by his being deprived of the materials. And the injuries described by the district court, far from constituting exceptional circumstances justifying equitable jurisdiction, were both wholly speculative and could be claimed by anyone whose property was seized in a criminal investigation. For example, the district court noted that the government’s filter process “thus far[] has been closed off to Plaintiff.” DE.64:10. But that fact is hardly extraordinary; the use of a filter team is a common way “to sift the wheat from the chaff” and “constitutes an action respectful of, rather than injurious to, the protection of [attorney-client] privilege.” In re Grand Jury Subpoenas, 454 F.3d 511, 522-23 (6th Cir. 2006); accord In re Sealed Search Warrant, No. 20-MJ-3278, 2020 WL 6689045, at *2 (S.D. Fla. Nov. 2, 2020) (“it is well established that filter teams—also called ‘taint teams’—are routinely employed to conduct privilege reviews”), aff’d, 11 F.4th 1235 (11th Cir. 2021).

In any event, Plaintiff’s counsel was given contact information for one of the filter attorneys on the day the search was executed. DE.127:42 (transcript). Indeed, the filter team had finished its review and was prepared to provide Plaintiff’s counsel with copies of all potentially privileged materials when the court issued its preliminary notice of intent to appoint a special master. DE.127:49; see DE.40:2. The government’s filter attorney explained that the filter team “put a pause on that process” out of deference to the court’s proceedings, DE.127:49, and sought the court’s permission to produce the materials to Plaintiff’s counsel, DE.127:52-53. The court instead “reserve[d] ruling on that request.” DE.127:53.

The district court also referred to Plaintiff’s supposed “injury from the threat of future prosecution,” DE.64:10, but that is not “considered ‘irreparable’ in the special legal sense of that term,” Younger, 401 U.S. at 46. As this Court already explained, “if the mere threat of prosecution were allowed to constitute irreparable harm[,] every potential defendant could point to the same harm and invoke the equitable powers of the district court.” Trump, 2022 WL 4366684, at *8 (quoting United States v. Search of Law Office, Residence, & Storage Unit, 341 F.3d 404, 415 (5th Cir. 2003)) (alteration omitted). That would improperly transform equitable jurisdiction from “extraordinary” to “quite ordinary.” Id. (quoting Search of Law Office, Residence, & Storage Unit, 341 F.3d at 415); see also Ramsden, 2 F.3d at 326.

The fourth Richey factor is “whether the plaintiff has an adequate remedy at law.” 515 F.2d at 1243. To the extent Plaintiff wishes to contest the legality of the search or to assert any claims of privilege, he may do so through ordinary motions practice in a criminal proceeding in the event that charges are filed. But absent extraordinary circumstances, “[p]rospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.” Deaver v. Seymour, 822 F.2d 66, 71 (D.C. Cir. 1987).

Finally, the other factors that the district court considered have no basis in precedent and cannot justify the exercise of equity jurisdiction. Certain of these factors, such as “the power imbalance between the parties” and Plaintiff’s “inability to examine the seized materials,” DE.64:11, are hardly extraordinary and exist whenever a lawfully obtained search warrant is executed. And to the extent the district court suggested that Plaintiff’s former elected office entitles him to treatment different from that afforded to any other subject of a court-authorized search, DE.64:10; DE.64:22, such a notion would be contrary to the public interest and the rule of law.

* * *

In short, the district court erred in exercising equitable jurisdiction over this action. The uncontested record demonstrates that the search was conducted in full accordance with a judicially authorized warrant, and there has been no violation of Plaintiff’s rights—let alone a “callous disregard” for them. Plaintiff has failed to meet his burden in establishing any need for the seized records—indeed, a substantial number of them are not even his—or in establishing any irreparable injury in their absence, and Plaintiff does not lack an adequate alternative remedy at law. This Court should therefore reverse the district court’s September 5 order with instructions to dismiss Plaintiff’s civil action.9

II. THE DISTRICT COURT ERRED BY ENJOINING THE GOVERNMENT FROM REVIEWING OR USING THE SEIZED RECORDS

Even if the district court properly exercised equitable jurisdiction, it erred by issuing an injunction preventing the government from using any of the lawfully seized materials in its ongoing investigation pending the special-master review for claims of privilege. To obtain a preliminary injunction, Plaintiff was required to establish (1) “a substantial likelihood of success on the merits”; (2) that “irreparable injury [would] be suffered” absent an injunction; (3) that “the threatened injury to [Plaintiff] outweighs whatever damage the proposed injunction may cause the opposing party”; and (4) that an injunction “would not be adverse to the public interest.” Vital Pharmaceuticals, 23 F. 4th at 1290-91. Plaintiff did not satisfy those requirements.

As to the likelihood of success on the merits, Plaintiff has no plausible claim of executive privilege, nor has he attempted to describe any, that could bar the government’s review and use of any the seized records—classified or unclassified. Further, to the extent Plaintiff has any plausible claims of personal attorney-client privilege regarding the seized records, those claims do not pertain to records bearing classification markings, and Plaintiff has failed to establish any irreparable injury he would suffer from permitting the government to review and use those records not already segregated by the filter team. By contrast, the government and public interest are harmed by the unprecedented injunction and order entered by the district court.

A. Plaintiff Has No Plausible Claims of Executive Privilege

Plaintiff has no plausible claim of executive privilege that could justify restricting the Executive Branch’s review and use of the seized records in the performance of core executive functions. Plaintiff has never even attempted to substantiate such a claim, and any such claim would fail for multiple independent reasons.

1. Plaintiff cannot invoke executive privilege to bar the Executive Branch’s review and use of its own records

Executive privilege exists “not for the benefit of the President as an individual, but for the benefit of the Republic.” Nixon v. GSA, 433 U.S. at 449. It protects the “legitimate governmental interest in the confidentiality of communications between high Government officials,” because “‘those who expect public dissemination of their remarks may well temper candor.’” Id. at 446 n.10 (quoting United States v. Nixon, 418 U.S. at 705). Consistent with the privilege’s function of protecting the Executive Branch’s institutional interests, the privilege may be invoked in certain instances to prevent the dissemination of materials outside the Executive Branch. E.g., Trump v. Thompson, 142 S. Ct. 680, 680 (2022) (per curiam) (materials requested by a Congressional committee). But neither Plaintiff nor the district court has cited any instance in which executive privilege was successfully invoked to prohibit the sharing of records or information 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 he could assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Nixon v. GSA, 433 U.S. at 447-48. The Court thus upheld the requirement in the Presidential Records and Materials Preservation Act (a precursor to the PRA) that personnel in the General Services Administration review documents and recordings created during his presidency. Although the Court stated that a former President may be able to invoke executive privilege after the conclusion of his tenure in office, see id. at 448-49, it “readily” rejected the argument that the privilege could bar review of records by “personnel in the Executive Branch sensitive to executive concerns.” Id. at 451.

Here, any assertion of executive privilege would similarly be made against “the very Executive Branch in whose name the privilege is invoked,” id. at 447-48, and it would be invalid for the same reasons. In this case, as in Nixon v. GSA, the officials reviewing the seized records are “personnel in the Executive Branch sensitive to executive concerns.” Id. at 451. Indeed, the circumstances here dictate that these records will be treated with heightened sensitivity: they were seized pursuant to a search warrant in a criminal and national security investigation; they are in the custody of the FBI; and they must be safeguarded as evidence, including through appropriate chain-of-custody controls. Further, the seized records bearing classification markings must be stored in approved facilities, and officials reviewing them must possess the appropriate level of security clearance and must have the requisite “need to know.” See Exec. Order 13,526 § 4.1(a), (g), 75 Fed. Reg. at 720-21.

Of course, the purpose of the Executive Branch’s review here differs from that in Nixon v. GSA. The review at issue there involved the “screen[ing] and catalogu[ing]” of Presidential materials “by professional archivists” to carry out a statutory scheme designed to “preserve the materials for legitimate historical and governmental purposes.” 433 U.S. at 450, 452. Here, the review is to be conducted by law enforcement and intelligence personnel as part of an ongoing criminal investigation and for purposes of assessing the potential damage to national security posed by the improper storage of records with classification markings. But that distinction only weakens any potential privilege claim by Plaintiff. The execution of criminal laws and the protection of national security information are core Executive Branch responsibilities. See U.S. Const. art. II, § 3; Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988). The effective and expeditious performance of those functions serves compelling public interests. Restricting the Executive Branch’s access to information needed to carry out those functions would serve neither the purposes of executive privilege nor the public interest.

2. United States v. Nixon forecloses any executive privilege claims

This Court need not, however, definitively answer whether a former President could ever successfully invoke executive privilege to block the Executive Branch’s review of its own records, because any such invocation in this case would inevitably fail under United States v. Nixon. In that case—involving a trial subpoena and a sitting President’s assertion of executive privilege—the Supreme Court made clear that executive privilege is qualified, not absolute. In doing so, the Court emphasized that a President’s interests in confidentiality “must be considered in light of our historic commitment to the rule of law.” 418 U.S. at 708. As the Supreme Court explained more recently, the Nixon Court “observed that the public interest in fair and accurate judicial proceedings is at its height in the criminal setting, where our common commitment to justice demands that ‘guilt shall not escape’ nor ‘innocence suffer.’” Trump v. Vance, 140 S. Ct. 2412, 2424 (2020) (quoting Nixon, 418 U.S. at 709). Accordingly, the Nixon Court concluded that President Nixon’s “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Nixon, 418 U.S. at 713. That “demonstrated, specific need” standard has since been applied in the context of investigative proceedings as well. In re Sealed Case, 121 F.3d 729, 753-57 (D.C. Cir. 1997) (grand-jury subpoena); see also Vance, 140 S. Ct. at 2432 (Kavanaugh, J., concurring) (describing the Nixon test as applying to “federal criminal subpoenas” and citing Sealed Case). Here, the government plainly has a “demonstrated, specific need” for evidence recovered pursuant to a warrant based on a judicial finding of probable cause. As explained below, that is so as to both the records bearing classification markings and the remaining seized records.10

a. The government has a “demonstrated, specific need” for the records bearing classification markings

The government’s need for the records bearing classification markings is overwhelming. It is investigating potential violations of 18 U.S.C. § 793(e), which prohibits the unauthorized retention of national defense information. These records are not merely evidence of possible violations of that law. They are the very objects of the offense and are essential for any potential criminal case premised on the unlawful retention of the materials. Likewise, these records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits concealment or removal of government records.

The records bearing classification markings may also constitute evidence of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of a federal investigation. As described above, 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 produced an envelope containing 37 documents bearing classification markings, see MJ-DE.125:20-21, and Plaintiff’s custodian of records certified 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. As evidenced by the government’s subsequent execution of the search warrant, all responsive documents did not in fact accompany that certification: more than 100 additional documents bearing classification markings were recovered from Plaintiff’s Mar-a-Lago Club. Those documents may therefore constitute evidence of obstruction of justice.

The government’s compelling need for these records is not limited to their potential use as evidence of crimes. As explained in the stay proceedings, the government has an urgent need to use these records in conducting a classification review, assessing the potential risk to national security that would result if they were disclosed, assessing whether or to what extent they may have been accessed without authorization, and assessing whether any other classified records might still be missing. The district court itself acknowledged the importance of the government’s classification review and national security risk assessment. DE.64:22-23. The government has further explained, including through a sworn declaration by the Assistant Director of the FBI’s Counterintelligence Division, why those functions are inextricably linked to its criminal investigation. DE.69-1:3-5. For example, the government may need to use the contents of these records to conduct witness interviews or to discern whether there are patterns in the types of records that were retained. The stay panel correctly concluded that a prohibition against using the records for such purposes would cause not only harm, but “irreparable harm.” Trump, 2022 WL 4366684, at *12; see also id. at *11. Plaintiff has never substantiated any interest that could possibly outweigh these compelling governmental needs, and none exists.

b. The government has a “demonstrated, specific need” for the remaining seized records

The government also has a “demonstrated, specific need” for the seized unclassified records. The FBI recovered these records in a judicially authorized search based on a finding of probable cause of violations of multiple criminal statutes. The government sought and obtained permission from the magistrate judge to search Plaintiff’s office and any storage rooms, MJ-DE.125:37, and to seize, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes,” MJ-DE.125:38. The magistrate judge thus necessarily concluded that there was probable cause to believe those items constitute “evidence of a crime” or “contraband, fruits of crime, or other items illegally possessed.” Fed. R. Crim. P. 41(c)(1), (2); see MJ-DE.57:3.

That is for good reason. As an initial matter, the unclassified records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits “conceal[ing]” or “remov[ing]” government records. Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House. Third, the government may need to use unclassified records to conduct witness interviews and corroborate information. For example, if a witness were to recall seeing a document bearing classification markings next to a specific unclassified document (e.g., a photograph), the government could ascertain the witness’s credibility and potentially corroborate the witness’s statement by reviewing both documents.

In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them.

3. Any claim of executive privilege as to the records bearing classification markings would fail for additional reasons

Any claim of executive privilege as to the documents bearing classification markings would fail for at least two additional reasons.

First, Plaintiff’s effort to block the Executive Branch’s access to the records bearing classification markings is inconsistent with the established principle that the incumbent President has sole authority to control access to national security information. As the Supreme Court explained in Egan, the President “is the Commander in Chief of the Army and Navy of the United States,” and his “authority to classify and control access to information bearing on national security . . . flows primarily from this constitutional investment of power.” 484 U.S. at 527 (internal quotations omitted). “The authority to protect such information” thus “falls on the President as head of the Executive Branch and as Commander in Chief.” Id.; see also, e.g., Murphy v. Sec’y, U.S. Dep’t of Army, 769 F. App’x. 779, 782 (11th Cir. 2019) (“The authority to protect national security information falls on the President.”). This authority to protect “and control access to” national security information falls on the incumbent President as “Commander in Chief,” not on any former President. Egan, 484 U.S. at 527. Yet Plaintiff effectively seeks to control which Executive Branch personnel (if any) can review records marked as classified and on what terms. This he cannot do. “For ‘reasons too obvious to call for enlarged discussion,’” that authority rests with the incumbent President and the discretion of the agencies to whom the President’s authority has been delegated. Egan, 484 U.S. at 529 (quoting CIA v. Sims, 471 U.S. 159, 170 (1985) (alteration omitted)).

Second, Plaintiff failed to assert executive privilege when his custodian was served with a grand-jury subpoena requiring production of “[a]ny and all documents or writings” in Plaintiff’s custody “bearing classification markings.” DE.48-1:11. Plaintiff’s counsel never suggested that executive privilege constituted grounds for withholding any responsive records. Indeed, although Plaintiff’s counsel sent the government a three-page letter on May 25, 2022, discussing what counsel described as “a few bedrock principles,” nothing in that letter contained any reference to executive privilege. MJDE. 125:34-36. Nor did Plaintiff move to quash the subpoena on executive privilege (or any other) grounds. Instead, Plaintiff’s counsel produced an envelope on June 3, 2022, that purportedly contained “[a]ny and all responsive documents.” DE.48-1:16.

The records recovered by the government during the August 8 search that bear classification markings are the very records that Plaintiff was required to produce on June 3, and over which he raised no claim of executive privilege. Having failed to produce documents responsive to a lawful grand-jury subpoena, Plaintiff should not be rewarded with an opportunity to further delay the government’s investigation by interposing such privilege claims now. Cf. Ramirez v. Collier, 142 S. Ct. 1264, 1282 (2022) (“When a party seeking equitable relief ‘has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him.’” (quoting Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245 (1933))).

B. Plaintiff Has No Plausible Claims of Attorney-Client Privilege That Would Justify an Injunction

As with executive privilege, Plaintiff has no plausible claim of personal attorneyclient privilege that would justify the injunction pending special-master review in this case. As the government has made clear, and as Plaintiff has never contested, any seized government records—including the seized records bearing classification markings—do not contain any privileged communications between Plaintiff and his personal attorneys. See DE.69:8; see also Exec. Order 13,526 § 1.1(2), 75 Fed. Reg. at 707. And although a limited number of the personal records that were seized are potentially subject to attorney-client privilege, the filter team already identified and segregated them, see DE.40, and neither Plaintiff nor the district court explained why it would be appropriate to enjoin the government’s investigative team from reviewing and using the remaining records pending a special-master review.

The district court seized on two instances in which the investigative team referred materials to the filter team because they fit broad prophylactic criteria for identifying materials that might be subject to attorney-client privilege, DE.64:15, and referenced concerns about “the appearance of fairness,” DE.64:16. In the first instance, as the filter team described, an investigative agent “observed a document” on a law firm’s letterhead “comingled with newspapers.” DE.40:5. Consistent with the filter protocols, the investigative team then “stopped its review of th[e] entire box” in which that document appeared and provided it to the filter team. Id. Plaintiff subsequently declined to assert privilege with respect to that document. See DE.138:2. In the second instance, an attorney on the investigative team observed “notes next to names” in a document reflecting Plaintiff’s phone calls, at which point—again consistent with the filter protocols—the attorney “stopped reviewing the set of materials and asked the [filter] attorneys to review it.” DE.40:6. The filter team has since provided further analysis of that document, and of a third document that was subsequently referred to the filter team, in a filing that remains under seal. DE.148. Far from demonstrating a failure of the government’s filter procedures, these actions involving an extraordinarily small subset of the seized records show that the government has taken pains to avoid review by the investigative team of any information that could possibly be subject to attorney-client privilege.

C. The Government and the Public Suffer Irreparable Injury from the Injunction Pending the Special-Master Review

The district court’s months-long injunction caused and continues to cause significant harm to the government and the public. As the stay panel correctly determined with regard to the injunction against further review and use of the records bearing classification markings, the district court’s order created an “untenable” distinction between permissible uses of those records for certain national security purposes and impermissible uses for criminal investigative purposes. Trump, 2022 WL 4366684, at *11; see id. (noting “the United States’s representation—supported by sworn testimony—that findings from the criminal investigation may be critical to its national-security review”). The panel thus correctly determined 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.” Id.

The stay panel further agreed with the government that “allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm,” and that “courts should order review of such materials in only the most extraordinary circumstances.” Id.; accord United States v. Reynolds, 345 U.S. 1, 10 (1953) (courts should be cautious before “insisting upon an examination” of records whose disclosure would jeopardize national security, “even by the judge alone, in chambers”). Indeed, courts have routinely rejected arguments in criminal proceedings that cleared defense counsel are entitled to classified information without the requisite “need to know.” See, e.g., United States v. Daoud, 755 F.3d 479, 484 (7th Cir. 2014) (reversing district court order to disclose classified information to cleared defense counsel and emphasizing that it is “a mistake to think that simple possession of a security clearance automatically entitles its possessor to access to classified information”); United States v. Asgari, 940 F.3d 188, 191 (6th Cir. 2019) (similar); see also United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002) (in enacting the Classified Information Procedures Act, 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”).

The district court’s injunction barring review and use of the other seized records harms the government and the public as well. A magistrate judge has already found probable cause to believe that those records may constitute evidence of crimes, and the government has demonstrated a clear need for them. See supra at 33-36. 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 expeditiously is further heightened where, as here, it has reason to believe that obstructive acts may impede its investigation. See MJDE. 80:7-9. The injunction bars the government from reviewing these records for months—until at least the mid-December deadline for the special master’s review, and likely well beyond that pending further proceedings before the district court. The injunction further compounds these harms by interposing the court in the government’s investigation, prohibiting the government from reviewing or accessing the records even for the purpose of evaluating potential charges. “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).

Finally, Plaintiff was not entitled to an injunction for purposes of safeguarding potential claims of attorney-client privilege because the filter procedures already required the filter team to segregate any materials deemed even potentially subject to attorney-client privilege. MJ-DE.125:31-32. The procedures further prohibited disclosure of those materials to the investigative team absent a court order or a decision by Plaintiff not to assert the privilege. Id. Thus, even if it were appropriate to appoint a special master to review attorney-client privilege disputes between Plaintiff and the filter team, the district court did not need to enjoin the government from review or use of all seized records—or even from review or use of those records already segregated by the filter team.

D. Plaintiff’s Purported Factual Disputes Are Irrelevant

In issuing its injunction, the district court stated that the special-master process is needed to resolve “disputes as to the proper designation of the seized materials.” DE.89:4. But there are no disputes that could possibly entitle Plaintiff to enjoin the government’s review and use of the seized records pending the special-master review, because none of the disputes raised by Plaintiff is relevant to potential claims of executive or attorney-client privilege.

1. Plaintiff’s suggestion that he might have declassified the seized records is irrelevant

In describing “disputes” as to the seized records, the district court cited portions of Plaintiff’s filings in which he suggested that he could have declassified those documents while he was President. DE.89:3-5. Plaintiff has referenced the “absolute authority over classification decisions” that he had while President, see, e.g., Response to Motion for Partial Stay at 12 (Sept. 20, 2022), and has even represented to the Supreme Court that the classification status of the seized records “is at the core of the dispute,” Application at 35, Trump v. United States, No. 22A283 (Oct. 4, 2022). In his myriad filings, however, Plaintiff has never actually represented—much less offered evidence—that he declassified any of the seized records. To the contrary: after being asked by the special master to identify any records he claims to have declassified, “Plaintiff resisted providing any evidence” or even any specific assertions, Trump, 2022 WL 4366684, at *8, stating that such an endeavor would “force[] [him] to . . . disclose a defense to the merits of any subsequent indictment,” DE.97:3.

Regardless, as the Court concluded in issuing a partial stay, “the declassification argument is a red herring because declassifying an official document would not change its content.” Trump, 2022 WL 4366684, at *8. Even if Plaintiff were to offer direct claims, supported by evidence, that he declassified any of the seized records, any potential executive privilege claims would still fail under both Nixon v. GSA and United States v. Nixon. Plaintiff would still be attempting to assert “a privilege against the very Executive Branch in whose name the privilege is invoked.” Nixon v. GSA, 433 U.S. at 447-48. And the government would still have a “demonstrated, specific need,” United States v. Nixon, 418 U.S. at 713, to review the records as part of its investigation of potential violations of 18 U.S.C. §§ 793, 1519, and 2071.

Among other things, the records’ classification status—including whether they were declassified and in what circumstances—would be an important consideration in assessing whether they contain “national defense information” within the meaning of Section 793. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908, 918 n.9 (4th Cir. 1980) (noting relevance of classification status). And even if they had been declassified, the records could still be evidence of obstruction of justice because the grand-jury subpoena sought evidence of all records that were marked as classified. Moreover, if any records were actually declassified, the government would have an additional compelling need to understand which formerly classified records had been declassified, why, and how, in order to evaluate the effects of any such declassification, including on the protection of intelligence sources and methods and on the classification status of related records or information.

2. Plaintiff’s suggestion that he might have categorized seized records as “personal” records under the PRA only weakens his executive privilege claims

Plaintiff has also repeatedly suggested that he might have categorized certain seized records as his “personal” records for purposes of the PRA. See, e.g., Response to Motion for Partial Stay at 14-15. Again, Plaintiff offers no specifics or evidence on this point. But any such action would only weaken Plaintiff’s case for conducting a review of these records for claims of executive privilege, and it would have no bearing on any claims of attorney-client privilege.

The PRA requires the President during his term of office to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records.” 44 U.S.C. § 2203(a). Documentary materials produced or received by the President or others in the Executive Office of the President must therefore “be categorized as Presidential records or personal records upon their creation or receipt.” Id. § 2203(b). Plaintiff has asserted that this statutory scheme affords him “sole discretion to classify a record as personal or Presidential.” Response to Motion for Partial Stay at 15. That claim is dubious, not least because the entire purpose of the PRA would be defeated if a President could simply designate all of his official records as “personal” ones, contrary to the PRA’s detailed definitions of “Presidential records” and “personal records,” 44 U.S.C. § 2201(2)-(3), which Plaintiff would appear to treat as merely optional guidance.11

Regardless, there is no reason to think Plaintiff’s hypothetical, prior designations of some records as personal would make any difference here. Any assertion of executive privilege by Plaintiff would only be undermined by a claim that a record is a “personal” record—i.e., a record “of a purely private or nonpublic character” not relating to the President’s performance of his official duties. Id. § 2201(3); see United States v. Nixon, 418 U.S. at 705 (executive privilege protects “Presidential communications” made in furtherance of the “performance of” the President’s official “duties”). Nor could Plaintiff’s purported designations of records for purposes of the PRA transform them into records protected by attorney-client privilege.

Finally, to the extent Plaintiff eventually intends to seek return of property, his hypothetical, prior designation of records as “personal” records would still be unavailing. It was Plaintiff’s burden to establish a possessory interest in the seized records when he brought this suit, and he cannot rely on threadbare insinuations to establish yet another “dispute” that must be adjudicated before a special master. Further, Plaintiff plainly would not be entitled to the return of evidence solely on the ground that the evidence belonged to him when it was seized. If that were the case, evidence rooms nationwide would soon be emptied.

III. THE COURT SHOULD REVERSE THE DISTRICT COURT’S REQUIREMENT THAT THE GOVERNMENT SUBMIT THE RECORDS FOR A SPECIAL-MASTER REVIEW

As noted above, Plaintiff has no plausible claim of executive privilege as to any of the seized materials and no plausible claim of personal attorney-client privilege as to the seized government records—including all records bearing classification markings. Accordingly, the special-master review process is unwarranted as to executive privilege (with respect to all of the materials) and as to the government records (with respect to all types of privilege).

Further, because Plaintiff did not demonstrate that the standard filter-team process is inadequate to protect his privileged attorney-client communications in the remaining materials, special-master review is unwarranted on that score as well. Indeed, the filter team had already completed its review by the time the court issued its order, see DE.40, and the filter process adequately accounts for any rare instances where the filter team did not initially identify a potentially privileged document. Nor did the search here involve a search of an attorney’s office or any other circumstances likely to produce appreciable volumes of privileged attorney-client materials. Cf., e.g., In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 178 (4th Cir. 2019) (search of law firm in which tens of thousands of emails were seized, and “many of th[e] seized emails contained privileged information concerning other clients”).

It follows that the district court erred in requiring the government to submit any of the seized materials for the special-master review process. This Court has already reached that conclusion in staying the district court’s September 5 order “to the extent it . . . requires the government to submit the classified documents to the special master for review,” Trump, 2022 WL 4366684, at *12, and for the reasons set forth above, this Court should now reach the same conclusion as to all the records.

Plaintiff has incorrectly maintained that this Court does not have jurisdiction to review that aspect of the district court’s September 5 order, which made plain that the government would have to submit all seized records for the special-master review. DE.64:18; DE.64:23. As the stay panel concluded, this Court has “appellate jurisdiction through 28 U.S.C. § 1292(a)(1), which provides courts of appeals with jurisdiction over interlocutory orders granting injunctions.” Trump, 2022 WL 4366684, at *6. The district court’s September 5 order “ENJOINED [the government] from further review and use” of any of the seized materials “for criminal investigative purposes pending resolution of the special master’s review process.” DE.64:23 (emphasis added). The injunction is plainly reviewable, as Plaintiff agrees. And the “special master’s review process” directed by the district court in the same order is also properly before this Court for multiple independent reasons.

First, this Court has pendent jurisdiction to review the district court’s order requiring review by a special master of the seized records and of Plaintiff’s purported privilege claims. As the stay panel correctly noted, “pendent appellate jurisdiction allows” this Court “to address an otherwise nonappealable order when it is inextricably intertwined with an appealable decision.” Trump, 2022 WL 4366694, at *6 n.3 (citing Jones v. Fransen, 857 F.3d 843, 850 (11th Cir. 2017)); see also Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 531 (2021) (similar). The injunction here expressly applies “pending resolution of the special master’s review process.” DE.64:23. Indeed, the special-master review is the very predicate for the injunction. As the district court itself explained, it issued the injunction “in natural conjunction with th[e] appointment” of the special master, DE.64:1, and because it viewed the injunction as necessary “to reinforce the value of the Special Master,” DE.89:7. The special-master review is thus “inextricably intertwined” with the injunction.

Second, the plain text of Section 1292(a)(1) provides that “courts of appeals shall have jurisdiction from[] . . . [ i]nterlocutory orders of the district courts . . . granting . . . injunctions” (emphasis added). It is thus the entire order that is appealable—not just particular issues within that order. The Supreme Court said as much in construing 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 (1999) (emphasis in original); see also BP P.L.C. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532, 1540 (2021) (Yamaha “explained” that “[ b]y allowing appellate courts to review the district court’s ‘order,’ . . . Congress ha[s] allowed review of any issue fairly encompassed within it”). So too here, this Court has jurisdiction to review the entirety of the district court’s September 5 “order,” including those aspects governing the appointment of a special master, which are “fairly encompassed within it.” BP P.L.C., 141 S. Ct. at 1540.

Third, even were this Court to conclude that neither the text of Section 1292(a)(1) nor pendent appellate jurisdiction provides a basis to review the aspects of the September 5 order governing the special-master review, this Court would at the very least have jurisdiction to consider the portion of that order requiring documents bearing classification markings to be disclosed in the course of the special-master review. That is because an order to disclose classified information is immediately appealable as a collateral order. Al Odah v. United States, 559 F.3d 539, 542-44 (D.C. Cir. 2009); cf. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 n.4 (2009) (reserving this question). Such an order “conclusive[ly]” “resolve[s] [an] important question[] separate from the merits” of the case. Mohawk, 558 U.S. at 106. And it is “effectively unreviewable on appeal from the final judgment in the underlying action,” id., because such a disclosure, once made, is irreversible. See Trump, 2022 WL 4366684, at *12 (describing the “long- recognized ‘compelling interest in protecting . . . the secrecy of information important to our national security’” (quoting Snepp v. United States, 544 U.S. 507, 509 n.3 (1980))).12

CONCLUSION

For the foregoing reasons, the Court should reverse the district court’s September 5 order with instructions to dismiss this action.

Respectfully submitted,

JUAN ANTONIO GONZALEZ MATTHEW G. OLSEN
United States Attorney Assistant Attorney General
99 N.E. 4th Street, 8th Floor

Miami, FL 33132

JAY I. BRATT
(305) 961-9001 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
Counsel for Appellant

October 14, 2022

CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 12,783 words. This brief complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)- (6) because it was prepared in a proportionally-based typeface using Microsoft Word 2016, 14-point Garamond.

/s/Sophia Brill
Sophia Brill

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 14, 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.
/s/Sophia Brill
Sophia Brill

_______________

Notes:

1 Citations to “MJ-DE” refer to docket entries in the matter docketed as 9:22-MJ-8332-  BER (S.D. Fla.). These proceedings before Magistrate Judge Reinhart included the  issuance and subsequent unsealing of the search warrant and related materials.
 
2 Here and before the district court, the government has referred to evidence developed  in its investigation to inform the courts of the relevant facts. Where possible, the  government refers to portions of the affidavit accompanying its search warrant  application that have been unsealed or to other information in the public record. See  MJ-DE.125. Of necessity, however, the government cannot publicly disclose all the  sources of its evidence, particularly while the investigation remains ongoing.
 
3 In prior court filings, the government has described this envelope as containing 38  documents. The difference is accounted for by one multiple-page document that had  previously been considered two separate documents.
 
4 The above page count reflects the completion of the electronic scanning of records  not bearing classification markings. See DE.140 (government electronically scanned a  total of 21,792 pages of materials, not including published materials such as books);  DE.40:2 (approximately 520 pages of materials provided to the filter team). Plaintiff  previously suggested that the materials were expected to total approximately 200,000  pages, likely based on vendor estimates, and the district court cited that figure in  extending the deadline to complete the special-master review. DE.123:1-2; see  DE.125:5. Additionally, the district court previously described the number of documents as approximately 11,000 based on its review of the government’s property  inventory, DE.64:4; see DE.39-1, and the government has cited that number in  subsequent filings. The government has since submitted a revised property inventory,  DE.116-1, and it estimates a total of 13,000 documents based on that inventory.
 
5 Federal Rule of Civil Procedure 53 authorizes the appointment of a special master in  civil cases under certain enumerated circumstances and contains provisions describing  special-master proceedings.
 
6 Both notices were initially filed under seal but have since been unsealed, except for  the exhibits to the filter team’s notice. See DE.62; DE.130.
 
7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209-11 (11th Cir. 1981) (en banc), the  Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit  handed down prior to October 1, 1981.
 
8 Plaintiff also invoked Federal Rule of Civil Procedure 53, but Rule 53 does not supply  a cause of action or contain any other basis for a suit in equity, and the district court  did not rely on it as a source of jurisdiction.
 
9 Although this appeal arises from a preliminary injunction, “[r]eview of a preliminary  injunction is not confined to the act of granting the injunction,” and the Court has  jurisdiction to direct dismissal of the case based on “jurisdiction or merits” where  appropriate. Munaf v. Geren, 553 U.S. 674, 691 (2008) (internal quotations omitted); see  id. (“[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). In particular, “[a]djudication of the  merits is most appropriate if the injunction rests on a question of law and it is plain that  the plaintiff cannot prevail.” Id.
 
10 Because the government satisfies United States v. Nixon’s “demonstrated, specific  need” test, which applies to a sitting President, this Court need not consider Plaintiff’s  status as a former President for purposes of this analysis. Cf. Trump v. Thompson, 142 S.  Ct. 680, 680 (2022) (per curiam) (discussion by lower court of Plaintiff’s status as a  former President was “nonbinding dicta” because “the Court of Appeals concluded  that President Trump’s claims would have failed even if he were the incumbent”) (citing  Trump v. Thompson, 20 F. 4th 10, 33 (D.C. Cir. 2021)).
 
11 Plaintiff relies on a single district court decision, Judicial Watch v. NARA, 845 F. Supp.  2d 288 (D.D.C. 2012). That case held that a third party cannot bring a claim to compel  NARA to revisit a President’s categorization of records. See id. at 302. Although the  court opined that the responsibility to classify records as Presidential or personal “is left  solely to the President” during his term of office, id. at 301, no court has held that  NARA would be without authority or recourse if a President were to designate records  that are plainly official government documents as personal records.
 
12 If the Court harbors any doubts about its jurisdiction over portions of the September  5 order, it should construe the government’s appeal and stay motion as a petition for a  writ of mandamus with respect to those portions and grant the petition. See Suarez-  Valdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988).

[admin]

Order re Donald J. Trump's Counsel's Letter [James M. Trusty] of 10/20/22 is Untimely
Donald J. Trump v. United States of America, Case No. 22-81294-CIV-CANNON
by Judge Raymond J. Dearie
10/21/2022

ORDER. The Special Master notes Plaintiff's counsel's letter of October 20, 2022 151 . To the extent Plaintiff asserts that the government's letter of the same date "is not fully accurate as to the Plaintiff's position on various documents," any submission by Plaintiff to the contrary is now untimely pursuant to my Order of October 7, 2022, which required the parties to submit their final log of positions regarding certain Filter Materials by October 20, 2022. Plaintiff may submit his position no later than the close of business today, October 21, 2022. Signed by Special Master Raymond J. Dearie on 10/21/2022. (Entered: 10/21/2022)

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

Letter From James M. Trusty to Judge Raymond Dearie
Re: Donald J. Trump v. United States of America, Case No. 22-81294-CIV-CANNON – Filter A Documents Respecting Document Categorization and Executive Privilege
10/20/22

The Timeline:

Thur, Oct 20. Briefs and Logs are due. DOJ Submits their filing.

Thur, Oct 20. "What? Our Homework is due? This is too hard!!". Team Trump declares they'll turn in their assignment on Oct 24th.

Friday Oct 21. Dearies says Trump's lawyers can turn in their homework a day late, but it's gotta be in by EOD on the 21st.

[Almost Certainly] Oct 21, 11pm EST. Cannon extends Team Trump deadline to December (because Oct 24 is too soon).

-- by iZoooom, Reddit, Oct. 21. 2022

Ifrah Law
Hands-on Counsel, Gloves-off Litigation
ifrahlaw.com
(202)524-4140
1717 Pennsylvania Ave., N.W., Suite 650, Washington, D.C. 20006

By ECF and Courtesy Copy October 20, 2022

Judge Raymond J. Dearie
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11202

Re: Donald J. Trump v. United States of America, Case No. 22-81294-CIV-CANNON – Filter A Documents Respecting Document Categorization and Executive Privilege

Dear Judge Dearie:

As noted in the Defendant’s October 20, 2022 submission (ECF 150) the parties met and conferred regarding Filter A documents on October 19, 2022. Up until receipt of the Defendant’s October 20, 2022 filing, we anticipated that there would be a joint submission and an exchange between the parties preceding that joint submission to confirm both parties’ positions. This is consistent with the process that was undertaken for the October 3, 2022 joint submission with the Filter Team. Instead, the government filed its own log and presented its legal positions on the documents for which there is dispute between the parties.

Unfortunately, the log submitted by the government is not fully accurate as to the Plaintiff’s position on various documents.

In light of these facts, the Plaintiff will file our position on the documents that remain in dispute by the close of business on October 24, 2022.

Sincerely,

James M. Trusty
Ifrah Law PLLC
1717 Pennsylvania Ave. NW, Suite 650
Washington, D.C. 20006
Telephone: (202) 524-4176
Email: jtrusty@ifrahlaw.com

Christopher M. Kise
Chris Kise & Associates, P.A.
201 East Park Avenue, 5th Floor
Tallahassee, FL 32301
Telephone: (850) 270-0566
Email: chris@ckise.net

Lindsey Halligan
Florida Bar No. 109481
511 SE 5th Avenue
Fort Lauderdale, FL 33301
Email: lindseyhalligan@outlook.com

M. Evan Corcoran
SILVERMAN|THOMPSON|SLUTKIN|
WHITE, LLC
400 East Pratt Street – Suite 900
Baltimore, MD 21202
Telephone: (410) 385-2225
Email: ecorcoran@silvermanthompson.com

Counsel for Plaintiff President Donald J. Trump

CC: Jay I. Bratt, jay.bratt2@usdoj.gov
Julie A. Edelstein, julie.edelstein@usdoj.gov
Anthony W. Lacosta, anthony.lacosta@usdoj.gov
Stephen Marzen, Stephen.Marzen@usdoj.gov
Juan Antonio Gonzalez, Jr., juan.antonio.gonzalez@usdoj.gov
Benjamin Hawk, Benjamin.Hawk@usdoj.gov
Case 9:22-cv-81294-AMC Doc

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

Letter From James M. Trusty to Judge Raymond Dearie
Re: Donald J. Trump v. United States of America, Case No. 22-81294-CIV-CANNON – Filter A Documents Respecting Document Categorization and Executive Privilege
10/21/22

Ifrah Law
Hands-on Counsel, Gloves-off Litigation
ifrahlaw.com
(202)524-4140
1717 Pennsylvania Ave., N.W., Suite 650, Washington, D.C. 20006

October 21, 2022

By ECF and Courtesy Copy
Judge Raymond J. Dearie
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11202

Re: Donald J. Trump v. United States of America, Case No. 22-81294-CIV-CANNON – Filter A Documents Respecting Document Categorization and Executive Privilege

Dear Judge Dearie:

As articulated in the Special Master’s Order dated October 7, 2022 (ECF 138) the parties were directed “to confer and attempt to resolve or narrow the disputes regarding the claims of executive privilege and designations pursuant to the Presidential Records Act.” Further, by October 20, 2022, the parties were directed to “submit to the Special Master an updated log containing any remaining disputes” regarding the following documents:

• A-001 through A-005;
• A-017 through A-022;
• A-025-A-026;
• A-029-A-030;
• A-033;
• A-036 through A040;
• A-043 through A052;
• A-053 through A-055; and
• A-056-through A-058.

(ECF 138).

The parties conferred on October 19, 2022, discussing their respective positions on the documents, with the government identifying certain documents that it recognized were personal to the Plaintiff, as reflected in the Defendant’s submission, dated October 20, 2022 (ECF 150).

During the October 19, 2022 conference between the parties, Plaintiff’s counsel stated generally its position regarding personal records under the Presidential Records Act; both parties acknowledged that their positions regarding personal versus Presidential characterizations, as well as whether executive privilege could be waived by the incumbent Administration, would require further briefing for the Court.

The log presented by the Defendant on October 20, 2022 does not accurately reflect the Plaintiff’s position as discussed during the October 19, 2022 conference. The Defendant’s submission mischaracterizes the Plaintiff’s position as to the following documents: Document 8 (A-021 to A-022 and A-025 to A-026), Documents 9 (A-029-A030) and 11 (A-033), Document 12 (A-036 to A-040), Document 13 (A-043 to A-052), Document 15 (A-054), and Document 16 (A-055). We clarify Plaintiff’s position as to these documents below.

• Document 8 (A-021 to A-022 and A-025 to A-026): Plaintiff asserts claim of Executive Privilege;
• Documents 9 (A-029-A-030) and 11 (A-033): Plaintiff is not asserting any privilege, but we did not agree that these documents should be designated Presidential;
• Document 12 (A-036 to A-040): Plaintiff asserts claim of Executive Privilege;
• Document 13 (A-043 to A-052): Plaintiff asserts claim of Executive Privilege;
• Document 15 (A-054): As the parties agree to the personal records designation, there is no further matter to resolve;
• Document 16 (A-055): As the parties agree to the personal records designation, there is no further matter to resolve.

We apologize for any confusion the multiple filings from the respective parties may cause. Again, Plaintiff’s counsel was surprised that the Defendant did not attempt to confirm the contents of its log at ECF 150 to ensure the parties’ respective positions were accurately represented. The above discrepancies could have been addressed prior to any submission.

We will be happy to represent Plaintiff’s positions ourselves and will confer with the Defendant for a briefing schedule on the substance of the categorization arguments. And going forward, Plaintiff’s counsel will not assume that orders requiring submissions “from the parties” means a jointly drafted document.

Sincerely,

James M. Trusty
Ifrah Law PLLC
1717 Pennsylvania Ave. NW, Suite 650
Washington, D.C. 20006
Telephone: (202) 524-4176
Email: jtrusty@ifrahlaw.com

Christopher M. Kise
Chris Kise & Associates, P.A.
201 East Park Avenue, 5th Floor
Tallahassee, FL 32301
Telephone: (850) 270-0566
Email: chris@ckise.net

Lindsey Halligan
Florida Bar No. 109481
511 SE 5th Avenue
Fort Lauderdale, FL 33301
Email: lindseyhalligan@outlook.com

M. Evan Corcoran
SILVERMAN|THOMPSON|SLUTKIN|
WHITE, LLC
400 East Pratt Street – Suite 900
Baltimore, MD 21202
Telephone: (410) 385-2225
Email: ecorcoran@silvermanthompson.com

Counsel for Plaintiff President Donald J. Trump

CC: Jay I. Bratt, jay.bratt2@usdoj.gov
Julie A. Edelstein, julie.edelstein@usdoj.gov
Anthony W. Lacosta, anthony.lacosta@usdoj.gov
Stephen Marzen, Stephen.Marzen@usdoj.gov
Juan Antonio Gonzalez, Jr., juan.antonio.gonzalez@usdoj.gov
Benjamin Hawk, Benjamin.Hawk@usdoj.gov
Case 9:22-cv-81294-AMC Doc

[admin]

Movant-Intervenor (Pro-Se) Raj K. Patel's Third Amended Reply to Defendant-United States of America's Response at Dkt. 48.
by Raj K. Patel
Donald J. Trump v. United States of America
Case 9:22-cv-81294-AMC
10/3/22

Case 9:22-cv-81294-AMC Document 145 Entered on FLSD Docket 10/13/2022

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

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

No. 9:22-cv-81294-AMC

Dated: October 3, 2022

JURY TRIAL DEMANDED

MOVANT-INTERVENOR (PRO SE)-RAJ K. PATEL'S THIRD AMENDED DKT. 87

I, T.E., T.E RAJ K PATEL, the undersigned movant-intervenor pro se, in the above-named case, with a pending motion at Dkt. 36, hereby submit this third amended reply to Defendant-United States of America's Response at Dkt. 48, which is written to be an addition to Dkt. 60 (duplicate filing at Dkt. 61), or as my response to Defendant's Motion at Dkt. 69. L.R. 7.1(c)(2) (10 pages, front and back). Amendments. Second Amendments. Third Amendments.

WHEREAS, "Attorney General Brewster explained more than a century ago, '[t]here are two kinds of official terms' ... One kind of 'term' refers to a period of personal service. In that case, 'the term is appurtenant to the person' ... Another kind of 'term' refers to a fixed slot of time to which individual appointees are assigned ... There, 'the person is appurtenant to the term' ... In other words, a 'term of office' can either run with the person or with the calendar," United States v. Wilson, 290 F.3d 347, 353 (D.C. Cir. 2002)(quoting Comm'rs of the Dist. of Columbia, 17 Op. Att'y Gen. 476, 476-79 (1882)); Hollingsworth v. Perry, 570 U.S. 693, 723, 133 S. Ct. 2652, 2672 (2013); and,

WHEREAS, the Presidential Records Act, 44 U.S.C. §§ 2201-2209, makes the former President a part of the Executive Branch, and more specifically the Presidency, Wilson, 290 F.3d at 353 & Federalist 78; and,

WHEREAS, executive privilege "safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is 'fundamental to the operation of Government,'" Trump v. Mazars U.S., LLP, 140 S. Ct. 2019, 2032 (U.S. 2020); and,

WHEREAS, all Presidential data "[ is] presumptively privileged," Nixon v. Siriea,487 F.2d 700,716 (D.C. Cir. 1973); and,

WHEREAS, "information subject to executive privilege deserves 'the greatest protection consistent with the fair administration of justice,''' Mazars, 140 S. Ct. at 2024 (quoting United States v. Nixon, 418 U.S. 683, 715 (1974)); and,

WHEREAS, "[t]he high respect that is owed to the office of the Chief Executive .. . is a matter that should inform the conduct of the entire proceeding," Clinton v. Jones, 520 U.S. 681,705, 117 S.Ct. 1636, 1650-51 (1997), and that there is a tradition of federal courts' affording "the utmost deference to Presidential responsibilities Clinton, 117 S. Ct. at 1652," In re Lindsey, 158 F.3d 1263, 1280 (D.C. Cir. 1998) (quoting Nixon, 418 U.S. at 710- 11) (internal quotation marks omitte)); and,

WHEREAS, "[t]he authority to protect national security information falls on the President," Dep't of the Navy v. Egan, 484 U.S. 518, 527 (1988), see also, e.g., Murphy v. See'y, U.S. Dep't of Army, 769 Fed. Appx. 779, 792 (11th Cir. 2019), & Dkt. 69 at 13; and,

WHEREAS, for purposes of Presidential Records Act, the incumbent President who transitions to former President, is an "agent" of the people, Egan, 484 U.S. at 529, Federalist 78, & Dkt. 69 at 18; and,

WHEREAS, the Supreme Court has emphasized that privilege claims, "must be considered in light of our historic commitment to the rule of law" and "[t]he need to develop all relevant facts in the adversary system," Nixon, 418 U.S. at 708-09 & Dkt. 69 at 9; and,

WHEREAS, "[ i]n the performance of assigned constitutional duties, [Executive branch] of the Government must initially interpret the Constitution, and ... The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications," Nixon, 418 U.S. at 703-4, 28 U.S.C.§ 516, Vargas v. United States, 114 Fed.CI. 226, 236 (2014) ("The government's reliance on 28 U.S.C. § 516 is misplaced."); & see generally David A. Strauss, "Presidential Interpretation of the Constitution," 15 Cardozo L. Rev. 113, 113-135 (1993)1; and,

WHEREAS, in other words, "executive branch. must interpret the Constitution before it can decide what to do," see generally Strauss, 15 Cardozo L. Rev. at 113-135; and,

WHEREAS, the Supreme Court has "reject[ed] the argument that only an incumbent President may assert" separation-of-powers claims, Nixon v. Adm'r of Gen. Servs., 433 U.S. 425,439 (1977); and,

WHEREAS, there is an internal, horizontal and vertical, separation of powers on interpreting the Constitution within the Executive Branch; and,

WHEREAS, privilege and immunities may be used to sustain separation of powers inside branches of government and across governments under the United States Constitution; and,

WHEREAS, the United States Department of State is responsible for interpreting and elaborating on the Privileges and Immunities Clause, U.S. const. art. IV, § 2;

WHEREAS, the United States Department of State shows its elaboration on the Privileges and Immunities Clause in the United States Order of Precedence by the Office of the Chief of Protocol, https://www.state.gov/wp-content/upload ... y-2022.pdf (revised Feb. 11,2022) & U.S. const. art. IV, §2; and,

WHEREAS, the United States Department of Justice, the Attorney General, or U.S. Attorney Juan Gonzales, did not follow the United States Order of Precedence duly established by the Office of the Chief of Protocol, ld.; and,

WHEREAS, the incumbent President of the United States has supported the United States Order of Precedence housed by the United States Department of State Office of the Chief of Protocol, which shows that former President Trump outranks incumbent Attorney General Merrick Garland, ld. & 3 U.S.C. §§ 301 et seq., and Hollingsworth, 133 S. Ct. at 2673-74 (proponents "are not elected" and "decide for themselves, with no review, what arguments to make and how to make them" in defense of the enacted initiative, ... those same charges could be leveled with equal if not greater force at the special prosecutors just discussed"); and,

WHEREAS, thus, the United States Department of State and the United States Department of Justice are adversaries in our system of rule of law, in order to create a separation of powers and checks and balance, but cf. Doctrine of Comity, U.S. const. art. N, § 2, & 28 U.S.C. § 516; and,

WHEREAS, the incumbent President of the United States has not cleared, nor may ratify unconstitutional acts to make them constitutionaI,2 breach of protocol; and,

WHEREAS, the executive Departments and its Heads have been created, by an Act of Congress, and appointed by the President, with advice and consent from the Senate, Freytag v. Comm'r, 501 U.S. 868, 886, 917 (1991) (discussing Heads and principal officers of the executive departments); and,

WHEREAS, the Executive Branch's "interpretation of its [own] powers .. .is due great respect from the others," Nixon, 418 U.S. at 703-4; and,

WHEREAS, former Presidents retain "actual authority" to bind the Government of the United States to contractual obligations necessary to carry out the duties of their unique legal offices, including in Congress' United States Court of Federal Claims, The Tucker Act, 28 U.S.C. §§ 1346(a) &1491 1 Schism v. United States, 316 F.3d 1259, 1304-06 (Fed. Cir. 2002), see supra, p. 15 n. 5, and but d. Hollingsworth, 133 S. Ct. at 2667; and,

WHEREAS, "[all] powers of law enforcement ... are assigned under our Constitution to the Executive and the Judiciary," Quinn v. United States, 349 U.S. 155, 161 (1955).

THEREFORE, only a unit of the Executive Branch, the current Attorney General, has brought charges against former President Trump in violation of the inter-workings of the executive branch protocol, ordered by the incumbent President Biden, as housed by President Biden's subordinates, who are also either the Attorney General's superiors or coequals on the subject-matter, in the United States Department of State.

FURTHERMORE, the President, the courts, or the Executive Branch cannot mute distinctions of office, person, state, and government, as they are an elaboration of the United States Constitution Privileges and Immunities Clause, which lays out the structure and lanes of enforcement. Poindexter v. Greenhow, 114 U.S. 270,290 (1884) (tithe distinction between the government of a State and the State itself is important, and [shall] be observed.") (underline added).

WHEREAS, in order for a federal district court of law to have personal jurisdiction, under Fed. R. Civ. 12(b)(2), traditional notions of "natural justice," "fair play," and "substantial justice" must at all time not be violated, McDonald v. Mabee, 243 U.S. 90,92 (1917), Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 123 (1951), Breithaupt v. Abram, 352 U.S. 432,435 (1957) (shock the conscience, traditional notions of fair play and decency, indicia of not a peaceful transition of power caused by Defendant-DOJ is a violation of the conscience), Gonzales v. United States, 348 U.S. 407, 412 (1955) ("underlying concepts of procedural regularity and basic fair play"), Int'l Shoe Co. v. Washington, 326 U.S. 310, 324 & 326 (1945), United States v. Lovasco, 431 U.S. 783, 796 (1977) (due process embodies "fundamental conceptions of justice" and "the community's sense of fair play and decency") (see Federalist 77, United States as a community), Cnty. of Sacramento v. Lewis, 523 U.S. 833,847 (1998) (conscience-shocking behavior is "so 'brutal' and 'offensive' that it [does] not comport with traditional ideas of fair play and decency.") (abuse of executive power) (decencies of "civilized conduct," epitomized in U.S. const. art. IV, § 2) (bowing and curtsy amongst and to state actors or the effect in our community), & Sessions v. Dimaya, 138 S. Ct. 1204,1212 (2018) (required by both "ordinary notions of fair play and the settled rules of law."); and,

WHEREAS, traditional notions of natural justice states a former T.H. (T.E.) President of the United States (T.E. President of the United States for all documents foreign affairs), from the Natural State, is more fit than the current court (judge and Defendant) and the Natural Order demands that the incumbent Attorney General yield to pressing charges against Plaintiff, our former Head of State, see United States Order of Precedence-United States Dep't of State-Office of the Chief of Protocol, U.S. const. art. IV, § 2, & Dkt. 60 at 2, 5, 5 n. 3, & 7; and,

WHEREAS, traditional notions of basic fair play and substantial justice have been violated, see e.g. Obergefell v. Hodges, 576 U.S. 644, 742 (2015) (harsh treatment is not fair play) (gays and lesbians have been denied the Natural Order, pursuant to their achievements in civil society, as the wealthiest community, particularly, gay men, in the United States; the same illness has entered state and governmental institutions, preventing the Natural Order, including in governing the Defendant's decisions) (Plaintiff has been denied rightful place in the aftermath of his honor's incumbency as President of United States)3 & Pet. for Writ of Cert. * 58-9, Patel v. United States, No. 22-5280 (U.S. 202_); and,

WHEREAS, even with explicit informed consent the Plaintiff cannot avail himself before this court because his availment cannot overcome the violation traditional notions of fair play, natural justice, and substantial justice as applied to the court and any possible ruling by this court, U.S. const. art. IV, § 2 & see also United States Order of Precedence-United States Dep't of State-Office of the Chief of Protocol; and,

WHEREAS, this court cannot attach personal jurisdiction to the Plaintiff as it would violate the traditional notions of fair play, natural justice, and substantial justice, and, thus, its opinion would only be advisory; and,

WHEREAS, in addition, the corollary to Plaintiff's former Presidential privilege, immunity, is the court's limited judicial review, Federalist 78, U.S. const. art. IV, § 2, art. ill (original intent), & amend. V. Marbury v. Madison, 5 U.S. 137 (1803).

THEREFORE, this Court should dismiss sua sponte under Fed. R. Civ. P. 12(b )(2), as the Court does not have personal jurisdiction for Plaintiff, or Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted, as there is no enforcement mechanism to require the Plaintiff, the former Head of State and former President, who is also Privileged, per the Natural State, and is Immune, per the Natural State too; the deficiencies can only be cured by new charges brought directly by the incumbent President, by his own counselor, rather than the incumbent Attorney General.

FURTHERMORE, the notions of natural justice, fair play, and substantial justice buttress castle doctrine, as generally applied, and Plaintiffs castle can uniquely, along with the past Presidents, can withstand all forces except those directly and constitutionally commanded by the incumbent President, e.g. United States Secret Service or United States Armed and Space Force. See Dkt. 60 at 2,5,5 n. 3, & 7. This is also because due process cannot override a Privilege or Immunity, and substantive due process is considerate of Privileges and Immunities, per the Federalist and Anti-Federalist contract of the Bill of Rights, and the interest of the Founders and Amenders to preserve the culture of our Nation. U.S. const. art. IV, § 2 & amend. XIV, § 2, cl. 1; Lovasco, 431 U.S. at 796; Federalist 80 ("It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY."); Pet. for Writ of Cert. * 58-9, Patel v. United States, No. 22-5280 (U.S. 202.J; & compare U.S. const. art. IV, §§ 1-27 with U.S. const. art. VI, § 1 referring to Articles of Confederation (1781), art. IV, paras. 1 & 3 ("The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union [ i.e., Doctrine of Comity in U.S. const. art. IV, § 21, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; ... provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them." // "Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.") (("magistrates" replaced with "citizen") (see Dkt. 21 at 13) (see also Patel v. United States, No. 1 :21-cv-02004-LAS (Fed. CI. 202J, Dkt. 1 at 9-10 n. 6)).

UNDER FED. R. CIV. P.24, I have a common question of law or fact or interest in the transaction because a favorable ruling to the Defendant can violate my Excellencies, the style/titles, and my career and statesmanship by extension of this ruling amongst licensed Governmental actors, local, state, federal, and international, who might sympathize with this Court's unconstitutionality.

Raj K. Patel THE EXCELLENT THE EXCELLENT U.S. const. art. IV. §2

WHEREAS, the Supreme Court has held that a former President may not successfully assert executive privilege against review by "the very Executive Branch in whose name the privilege is invoked," Nixon, 433 U.S. at 447-48. & Dkt 69 at 8;4 and,

WHEREAS, executive Privilege and executive Immunity are corollaries, but distinct concepts, U.S. const. art. IV, § 2 & amend. XlV, § I, d. 2; and,

WHEREAS, asserting one necessarily imputes the assertion of the other, Id.; and,

WHEREAS, former United States President Trump may assert executive Immunity from United States Governmental force which is not under the command of the incumbent United States President, Id.; and,

WHEREAS, in the happenings related to Nixon, 433 U.S. at 425, incumbent President Gerald Ford was intimately involved in prosecuting former President Nixon, Id. & cf Dkt. 1 at 10; and,

WHEREAS, here, as unlike in the happenings related to Nixon, 433 U.S. at 425, the incumbent President is not intimately involved against the prosecution of President Biden, PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1, 12-13 (D.C. Cir. 2016) (Madisonian presidential control), see Morgan v. United States, 304 U.S. 1, 22 (1938) (holding that it is "not the function of the court to probe the mental processes of the [Executive]"), and Dkt. 1 at 10; and,

WHEREAS, here, the topics of documents are related to foreign policy, unlike in Nixon, 433 U.S. at 425, where, the documents were related to domestic policy; and,

WHEREAS, more specifically and materially, a former President/Head of State outranks the incumbent Attorney General in foreign relations and diplomatic matter, which are exclusively reserved for the President's recognition, see generally Providence Journal, 485 U.S. at 701 (more than one "United States" is "startling"); and,

WHEREAS, the incumbent President, the United States Order of Precedence duly established by the Office of the Chief of Protocol, and the Presidential Records Act show that the former presidents carry on official duties, which come with omnipresent privileges and immunities, which are absolute except at against an incumbent President, Nixon, 418 U.S. at 703-4 & Scheuer v. Rhodes, 416 U.S. 232, 239, 241, 244, & 248, (1974); and,

WHEREAS, the Constitutional power of executive Privilege and/or executive Immunity of a former President, thus, may be lawfully asserted against the incumbent Department of Justice, U.S. const. art. IV, § 2 & amend. XIV, § 1, cl. 2, Murray v. Bush, No. 06-C-0781 * 1 (E.D. Wis. Aug. 31, 2006) ("whether the action is frivolous or malicious, or seeks relief from an immune party, or fails to state a claim on which relief may be granted.") (italics added) (internal citations omitted); cf 28 U.S.C. § 1915(e)(2)(B)(iii)i Williams v. Holmes, No. 1:17-cv-00799-KOB * 1 (N.D. Ala. Sep. 5, 2017); Malcolm v. City of Miami, No. 22-cv-20499-KING/DAMIAN * 2, 4, & 6 (S.D. Fla. Mar. 7, 2022); & Lister v. Dep't of Treasury, 408 F.3d 1309 (10th Cir. 2005); and,

WHEREAS, the Plaintiff can lawfully possess the disputed United States records, 44 U.S.C. § 2202; and,

WHEREAS, the Fed. R. Civ. P. 8(c)(1) allow for the affirmative defenses of illegality (Defendant's play in obtaining Presidential Records) license (U.S. const. art. IV, § 2), laches (Defendant should have acted quicker if truly suspicious of national security), or unclean hands (Defendant should have involved the incumbent President of the United States); and,

WHEREAS, this Court is in Comity with both Plaintiff and Defendant, and has the privilege of serving each party in his/her/their individual capacity, Doctrine of Comity, U.S. const. art. IV, § 2.

THEREFORE, the Plaintiff is immune from prosecution from the Defendant, and the Court should return all records to plaintiff, President Trump, and order charges against The Honorable Garland for conversion, "treason"/"war"/"attack," and rebellion or insurrection. U.S. const. art. ill, § 3; 18 U.S.C. § 2381; & Providence Journal, 485 U.S. at 701.

FURTHERMORE, under the Constitutional fiction, which starts, at a minimum, with the corporate charters mentioned in the Declaration of Independence (1776), the local, excellent corporations and other local authorities have devolved power to the Federal Sovereign, much more than the Sister States have to the Federal Sovereign; thus, the interest in the transaction is a check on the Devolved Sovereignty, Faithfully ordered by me, the intervenor, and as a taxpayer. U.S. const. art. IV, §§ 1-2 & art. VI, § 1; Federalist 78; & 42 U.S.. §§ 2000bb et seq. See also White House Office of Intergovernmental Affairs, https: / /www.whitehouse.gov/iga/.

WHEREAS, barring subordinate Executive Branch from reviewing and using the classified records for criminal investigative purposes is a meaningful way of protecting "the confidentiality of Presidential communications," Nixon, 418 U.S. at 705 & contra. Dkt. 69 at 10; and,

WHEREAS, the reasons Presidents or the courts allow independent personnel across the Intelligence Community to review the very same records for other closely related purposes but not the remainder of the Executive Branch do not have to be revealed in order to protect the confidentiality of Presidential Records, Nixon, 418 U.S. at 705; and,

WHEREAS, technocrats are the personnel across the Intelligence Community who usually receive these records and whose narrow objectives are precisely codified, unlike in the not-independent Executive Branch were partisans, party members, former members of Congress, and bureaucrats who are accountable to varying interests, such as foreign Heads of State and inter-governmental organizations and those hierarchies, are likely to receive and be exposed these records; and,

WHEREAS, an affirmance of the default protectionist rule of Presidential Records will allow the Republic to remain One and intact, Nixon, 418 U.S. at 705, Providence Journal, 485 U.S. at 701, Nixon, 433 U.S. at 447-9, & Rein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007) (Rather, they were "created entirely within the executive branch ... by Presidential executive order." (quoting Freedom From Religion Found., Inc. v. Chao, 433 F. 3d 989,997 (7th Or. 2006)); and,

WHEREAS, the Department of Justice is not an independent agency of the Executive Branch; and,

WHEREAS, here, the "trial" is of a former President, which was not initiated by the incumbent President; and,

WHEREAS, the enforcement of Nixon, 418 U.S. at 705 is different due to the advancement of technology; and,

THEREFORE, preventing the United States Department of Justice from gaining access to the material Presidential Records is lawful, as well as the appointment of the special master, but the Presidential Records are properly returned to President Trump at the earliest convenience; if not, at least a copy of all records, as the Plaintiff maintains his presumption of correctness until proven otherwise.

FURTHERMORE, this transaction could extent to local governments, a set of Devolvers of Sovereignty, and interfere with local jurisdictions' record keeping practices and the privileges and immunities of their agents, including when those jurisdictions were demarcated in another state.

WHEREAS, Dkt. 69 at 10-11 equivocates about the Executive Branch-generally with the more specific terminologies of executive Privileges and/or Immunities applied to the Executive Branch-incumbent-President and Executive Branch-former-President; and,

WHEREAS, Defendant is unpersuasively arguing, that in addition to its trespass to a former President's castle, its Governmental unit's needs are of more national importance than the status quo established by the Executive Branch-incumbent-President, which does not discriminate against the Executive Branch-former-President-Plaintiff, and made publicly available through the United States Department of State-Office of the Chief of Protocol (whether the Executive Branch-incumbent-Attorney-General is a state actor or a governmental actor is irrelevant due to the order of precedence and the Executive Branch-incumbent-President's establishment of the national security agenda; nonetheless, these distinctions cannot be muted), Egan, 484 U.S. at 527; see also, e.g., Murphy, 769 Fed. Appx. at 792 ("The authority to protect national security information falls on the President [directly]."), &; Dkt. 69 at 13, Poindexter, 114 U.S. at 2905; and,

WHEREAS, the President is an agent, in the terms of the Presidential Records Act and Federalist 78; and,

WHEREAS, the courts must protect the President from aggression from unknown sources within Executive Branch, which concurrently politically answer to varying interests, Dkt. 69 at 18 quoting Egan, 484 U.S. at 529; and,

WHEREAS, the courts must be sensitive to the inter-workings and inter-politics of the executive branch;

WHEREAS, hypothetically, Executive Branch-incumbent-Attorney-General-DOJ-and-FBI could have been denied access to Presidential Records of Executive Branch-former-President-Trump by Executive Branch-incumbent-President-Biden; and,

WHEREAS, therefore, the current happenings in the case-at-hand are appeasement to vital parts of the Government and possible political parties and factions the President must appease, PHH Corp., 839 F.3d at 1 & 12-13 (As the Supreme Court has explained, our Constitution "was adopted to enable the people to govern themselves, through their elected leaders," and the Constitution "requires that a President chosen by the entire Nation oversee the execution of the laws.") (quoting Free Enterprise Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010)); Hollingsworth, 133 S. Ct. at 2667 ("They are free to pursue a purely ideological commitment to the law's constitutionality without the need to take cognizance of resource constraints, changes in public opinion [including polls factoring the opinions of social outcasts, U.S. const. art. IV, § 2 & amend. XIV, § 1, cl. 2], or potential ramifications for other state priorities[,]" [appropriation through genomics]); United States v. Arthrex, Inc., No. 19-1434 * 23,594 U.S. __ (2021) (Roberts, C.J., The Constitutional hierarchy requires "the exercise of executive power [to remain] accountable to the people."); & Dkt. 69 at 18 quoting Egan, 484 U.S. at 527 (unauthorized persons); and,

WHEREAS, there is rule of law, the Courts must protect the Executive Branch-incumbent-President and the Executive Branch-former-President from aggressions; and,

WHEREAS, the current acts are aggressions against the United States, found in some Western Hemisphere's- and Sister Common Law jurisdictions'-governmental fashion for coups de tat.

THEREFORE, the Court should enter judgement in favor of Plaintiff, who is immune from prosecution by the Defendant-Mr. Gonzalez.

WHEREAS, in addition to Dkts. 21, 36, and 60, the Political Question Doctrine, under Baker v. Carr, 369 U.S. 186, 217 (1962) (a textually demonstrable constitutional commitment of the issue to a coordinate political department); and,

WHEREAS, pursuant to the Political Question Doctrine the issue is reserved for the Presidency directly, for the interest of maintaining Presidential Autonomy (i.e. in an earlier draft of the Declaration of Independence of 1776, Thomas Jefferson addressed the Grievances against the Parliament, which he thought caused the denial of the Olive Branch Treaty; but, The King was still giving power to Parliament), compare Original Draft ("we utterly dissolve all political connection which may heretofore have subsisted between us and the people or parliament of Great Britain: and finally we do assert and declare these colonies to be free and independent states, and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.") with Final Draft;6 and,

WHEREAS, Robert Yates, who refused to sign the United States Constitution thought that the judiciary would be able "to mould" the role of the presidency; 7 and,

WHEREAS, "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process ... [a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way that many would be unwilling to express except privately," Nixon, 418 U.S. at 705 & 708; and,

WHEREAS, "[ i]n designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence," Nixon, 433 U.S. at 442-3 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)); and,

WHEREAS, the Attorney General might be appropriate if Congress' interests were violated with the Presidential Records Act, but cf, Id., 2 U.S.C. §§ 192 & 271-288n, & Anderson v. Dunn, 19 U.S. 204 (1821) (only when Congress' interests are violated, the Segreant [sic. Sergeant]- at-Arms does the enforcement; see generally Title 2 of the United States Code); and,

WHEREAS, "[t]he essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around[,]" Hollingsworth, 133 S. Ct. at 2675; and,

WHEREAS, the incumbent President of the United States is the "next friend" of the 'the real party in interest," the unique Sovereign, of all the natural persons, each a sovereign, of the United States, Hollingsworth, 133 S. Ct. at 2665 & 2674.

THEREFORE, the Court should enter judgement, under Fed. R. Civ. P. 12(b)(2) or (b)(6), in favor of Plaintiff, who is immune from prosecution by the Defendant-Mr. Gonzalez, and advise that prosecution is most proper from the incumbent President himself or his honor's counselor, i.e. Counselor to the President (Mr. Steve Ricchetti, J.D.), but not the Attorney General (The Hon. Merrick Garland, J.D.). But cf. White House General Counselor (Mr. Stuart F. Delery, JD.). In re Lindsey, 158 F.3d at 1280-2 (White House General Counsel under the command of the incumbent President v. DOJ. Hollingsworth, 133 S. Ct. at 2665 & 2673 (referring to Providence Journal Co., 485 U.S. at 700). Federalist 78. Maine Cmty. Health Options, 140 S. Ct. at 1334 (Alito, J., dissenting) (Head of Washington, D.C. should direct its nat'l State and Government, an ordinary federal common law matter). All documents should be returned to Plaintiff.

IN THE ALTERNATIVE, the court may dismiss under Fed. R. Civ. P.12(b)(7).

IN THE ALTERNATIVE, since the Defendant's acts are unconstitutional and cannot be ratified to become constitutional, as Defendant omitted the incumbent President-Head of State and -Head of Government against the incumbent President's own Order for Protocol, the court may dismiss and rule in favor of Plaintiff for the Defendant's unclean hands.

IN THE ALTERNATIVE, the court may issue an Order to Show Cause to the Defendant for law enforcement jurisdiction.

AT ALL COSTS, this Court should avoid creating a slippery slope so that the incumbent President will be subject to arrest by the incumbent Attorney General, who, but, serves at the honor's pleasure, or create an unconstitutional autonomy of executive departments, which will not be accountable to the People, - or, sometimes, to their varying interests - the epitome of executive tyranny.

"[A] pro se [motion], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007).

I use my Constitutional Privileges, honors, and rights of knowing from my undergraduate and law school, juris doctor candidacy, educations, and political offices and from reading law outside of formal schooling for the writing and discussions, arguments, and motions of these filings, see Dkt. 21 at 5 & 20 and supra, p. 20 (signature line). Hollingsworth, 133 S. Ct. at 2667 & 2670-71 ("unique legal status").

I move for leave to file this third amended Dkt. 87.

I move to reinstate my Motion to Continue Without Pre-Paying Filing Fees at Dkt. 22, to avoid default and interest charges on other monetary commitments.

Respectfully submitted,

/s/ Raj K. Patel
T.E., T.E. Raj Patel (pro se)
6850 East 21st Street
Indianapolis, IN 46219
Marion County
317-450-6651 (cell)
rajp2010@gmail.com
http://www.rajpatel.live


Raj K. Patel THE EXCELLENT THE EXCELLENT U.S. const. art. IV. §2

Article IV, Section 2.
The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

J.D. Candidate, Notre Dame L. Sch. 2015-2017
President/Student Body President, Student Gov't Ass'n of Emory D., Inc. 2013-2014 (corp. sovereign 2013-present)
Student Body President, Brownsburg Cmty. Sch. Corp./President, Brownsburg High Sch. Student Gov't 2009-2010 (corp. sovereign 2009-present)
Rep. from the Notre Dame L. Sch. Student B. Ass'n to the Ind. St. B. Ass'n 2017
Deputy Regional Director, Young Democrats of Am.-High Sch. Caucus 2008-2009
Co-Founder & Vice Chair, Ind. High Sch. Democrats 2009-2010
Vice President of Fin. (Indep.), Oxford C. Republicans of Emory D., Inc. 2011-2012
_______________

Notes:

1. David A. Strauss, "Presidential Interpretation of the Constitution," 15 Cardozo L. Rev. 113, 113- 135 (1993), https:/chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=&httpsredir=1 &article=3006&context=journalarticles;Presidential.

2. Under the common law, the incumbent King may change protocol at-will against a former Head of State or a preceding Monarch; those vested powers are embedded in the United States Constitution and remain constant until lawfully amended. Besides, as the complaint and Attorney General's Merrick Garland's public, apolitical, and legal comments show, currently, ]only a unit of an Executive branch has acted, i.e. the Department of Justice-F.B.I., rather than the Executive branch as whole. Dkt. 1 at 10. To no surprise, even against a former president, in order to legally condition the peaceful transition of power, the Executive power is much weaker than of a common law King's. United States v. Providence Journal Co., 485 U.S. 693, 701 (1988) (more than one "United States" is "startling"). Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1334 (Alito, J., dissenting) (internal citations omitted) "federal common law" has unique interests).

3. https://hrc-prod-requests.s3-us-west-2. ... pendix.pdf.

4. An F.B.I. cannot claim executive Privilege against the incumbent Attorney General, but a former President can claim executive Privilege (i.e. Presidential Privilege) against the incumbent Attorney General. Respectively, the independent concept of executive Immunity applies, which favors the former President against the incumbent Attorney General.

5. Poindexter, 114 U.S. at 290 ("In common speech and common apprehension they are usually regarded as identical; and as ordinarily the acts of the government are the acts of the State, because withi: the limits of its delegation of power, the government of the State is generally confounded with the State itself, and often the former is meant when the latter is mentioned. The State itself is an ideal person, intangible, invisible, immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. The Constitution of the State is the limit of the authority of its government, and both government and State are subject to the supremacy of the Constitution of the United States, and of the laws made in pursuance thereof ... This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say "L'Etat c'est moi."" [I am the State"].

6. https://teachingamericanhistory.org/doc ... pendence./

7. https:/www.heritage.org/courts/report/against-judicial-supremacy-the-founders-and-the-limits-the-courts ("Every body of men invested with office," Yates observed, "are tenacious of power." Moreover, this love of power would "influence" judges "to extend their power, and increase their rights," with the result that the courts will tend to "give such a meaning to the Constitution in all cases where it can possibly be done, as will enlarge the sphere of their authority." ... The end result of all this would be a Supreme Court with power to rule the country in the most important matters according to its own will -- to not only exceed its authority but to usurp others' authority. "This power," Yates said, "will enable" the justices of the Supreme Court "to mould the government into almost any shape they please." ... Yates further contended that the Supreme Court would not only be supreme over all other courts, but that it would, in fact, be the supreme power in the government to be created by the Constitution. This supremacy, Yates contended, would follow from the Court's power of settling for all other political actors the authoritative meaning of the Constitution. The Supreme Court, he observed, "has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the Constitution.").  

CERTIFICATE OF SERVICE

I certify that I served a copy of the foregoing Raj K. Patel's (Pro Se) Third Amended Dkt. 87 on 10/3/2022 to below individuals via the e-mail:

James M. Trusty
IFRAH, PLLC
1717 Pennsylvania Ave, NW, Suite 650
Washington, DC 20006
202-852-5669
Email: jtrusty@ifrahlaw.com

Lindsey Halligan
511 SE 5th Avenue
Fort Lauderdale, Florida 33301
720-435-2870
Email: lindseyhalligan@outlook.com

Christopher Michael Kise
Chris Kise & Associates, P.A.
201 East Park Ave. Ste, 5th Floor
Tallahassee, FL 32301
(850) 270-0566
chris@ckise.net

M. Evan Corcoran
Silverman, Thompson, Slutkin, & White, LLC
400 East Pratt Street, Suite 900
Baltimore, MD 21230
410-385-2225
ecorcoran@silvermanthompson.com

Juan Antonio Gonzalez
UNITED STATES ATTORNEY
99 NE 4th Street, 8th Floor
Miami, Fl33132
Telephone: (305) 961-9001
Email: juan.antonio.gonzalez@usdoj.gov

Jay I. Bratt, Chief
Counterintelligence & Export Control
Section Nat'l Security Div.
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
(202) 233-0986
jay.bratt2@usdoj.gov

President Joe Biden
c/o Marina M. Kozmycz, Associate Gen. Counsel
The E.O.P. at the White House
1600 Pennsylvania Avenue NW
Washington, D.C. 20500
Phone: 202-457-1414
[REDACTED]

Dated: October 3, 2022

Respectfully submitted,

/s/ Raj K. Patel
T.E., T.E. Raj Patel (pro se)
6850 East 21st Street
Indianapolis, IN 46219
Marion County
317-450-6651 (cell)
rajp2010@gmail.com
http://www.rajpatel.live

[admin]

The Incredible Mystery of How Trump Got Judge Cannon in the Mar-a-Lago Case: There are a number of incredible coincidences that led to the former president getting his preferred judge.
by Jose Pagliery
Updated Oct. 18, 2022 12:17PM ET / Published Oct. 18, 2022 4:43AM ET

When Donald Trump’s legal team filed their court paperwork protesting the Mar-a-Lago raid, a lawyer took the rare step of actually filing the paperwork in person. At a courthouse 44 miles from Mar-a-Lago. And they got a judge to oversee the case that was outside both West Palm Beach—where the raid took place—and the district where they filed.

Those incredible coincidences have led lawyers and legal experts to suggest that something may not be above board with how Trump’s team filed their lawsuit, which serendipitously ended up in the MAGA-friendly hands of Judge Aileen Cannon.

For one, Trump’s team blamed a “technical issue” with the court’s computer system. But The Daily Beast has discovered that the system was working just fine for dozens of other lawyers making hundreds of filings that day.

For another, lawyers typically file lawsuits at the district where an issue took place. Trump’s lawyers filed at a courthouse in a neighboring division.

And third, lawyers will mark a case as “related” when it deals with a similar matter. Trump’s legal team did not—despite the fact that another magistrate judge at the right courthouse had approved the FBI’s search warrant to recover those classified government documents from Mar-a-Lago.

“It’s clearly related. I don’t think there’s a plausible argument that it’s not related… it was related to another case in the district—in the same courthouse as a matter of fact,” said Carl Tobias, a law school professor at the University of Richmond.

Questions continue to swirl over how exactly Trump managed to get Cannon, who has shocked legal scholars by issuing mind-boggling orders that always favor Trump. She has temporarily halted the FBI investigation, appointed a “special master” to slow down the probe, and kept the case far from its natural home in Washington, D.C.

“It was basically a home run to get her,” said Loyola Law School professor Jessica Levinson. “They clearly made the correct calculation, because Judge Cannon’s rulings legally don’t make sense. They only make sense if you’re trying to help the former president.”

Levinson said Trump’s team was clearly “judge shopping.”

“They did not want the magistrate judge to make this decision,” she said. “There was already a captain of this ship. They just didn’t like the direction this was taking.”

Trump’s lawyers filed in one division, Fort Lauderdale, selected the venue in a second division, West Palm Beach, and got a judge in a third division, Fort Pierce. And the way Trump handled this matter was odd from the start.

On Aug. 8, the FBI raided Trump’s oceanside estate in Palm Beach. But he did nothing to intervene or legally protest the search over the following two weeks—inaction that surprised two lawyers who have done significant work for Trump or his associates, who told The Daily Beast about their frustration.

It wasn’t until Aug. 22 that Trump finally sued the government to assert his rights were being violated—at a courthouse an hour’s drive south of Mar-a-Lago. A relatively new addition to the former president’s ever expanding cadre of lawyers, the 33-year-old Lindsey Halligan, went in person to the Fort Lauderdale courthouse near her listed address to submit a copy of the 27-page lawsuit, according to a receipt of the transaction. West Palm Beach was selected as the proper venue. The clerks entered the document into the court system at 4:50 p.m.

The move was so peculiar that Trump’s legal team had to explain themselves, which they did in an official document electronically signed by Halligan, Washington lawyer James M. Trusty, and Baltimore attorney M. Evan Corcoran.

“A technical issue with access to the Court’s CM/ECF system precluded electronic filing today, and the CM/ECF Help Desk advised undersigned counsel to file conventionally,” they attested.

To fact-check that, The Daily Beast examined timestamps for all 1,370 court filings made in the Southern District of Florida that day and interviewed lawyers who used the system throughout the afternoon.

Five lawyers who filed documents in the district that day told The Daily Beast that the court’s electronic system was working fine and some even provided receipts that showed their electronic filings were submitted successfully. The district’s head clerk, attorney Angela E. Noble, also confirmed that her court experienced no technical difficulties that day.

Court docket timestamps provide further proof. A lawsuit against a pizzeria was filed electronically at 4:08 p.m. Pissed-off restaurant employees sued their boss over missing tips at 4:14 p.m. A cruise line got sued three minutes later at 4:17 p.m. And the system was still working at 4:43 p.m., just three minutes before Trump’s lawyers filed their lawsuit, when a woman sued over the way she tripped on a pallet at a Costco aisle.

The system was up and running afterwards too, when a food producer sued French businessmen at 5:10 p.m.

When South Florida lawyers who regularly practice in this district were told about Trump’s in-person filing—and the excuse that the system wasn’t working—they all responded with disbelief.

"I don’t know anybody who files in person. I didn’t even know you could do that anymore. It looks like this person was trying to select a particular judge,” one said, suggesting that a Trump lawyer may have had sway with a court employee.

"I find it bizarre. The only people who file in person are ‘pro se,’” said another, referring to people who sue on their own without the help of a lawyer.

“People don’t do this anymore. It’s extremely odd. I guess you could do this if you wanted to get a particular judge—or avoid getting a particular judge,” speculated a third.

For weeks on social media, legal scholars and paid news commentators have been wondering the same thing—and openly suggesting that Trump’s legal team figured out how to game the system.

“Could the 4th estate PLEASE get to the bottom of this,” tweeted former DOJ prosecutor Andrew Weissmann. “If there wasn’t at least the potential to judge shop why on g_d’s green earth would Trump have gone all the way to her district to file and do so physically, when he could have electronically filed at the court in his backyard?”

Lawyers spoke on background, citing a concern that they may have future cases assigned to Judge Cannon.

Some lawyers raised the possibility that Trump’s lawyers tried to be deliberately vague when they blamed “a technical issue with access to the court's” system, which could technically mean they couldn’t get their own computers to work.

“It lacks the ambiance of candor,” one lawyer said. “What do you mean by technical issue? Are you saying the court system was down? Or your computer was down?”

Trump’s own lawyers seem to disprove that notion. In court documents, Halligan attested that she was able to send a copy of the lawsuit “via electronic mail” that day to two Department of Justice lawyers: top Miami federal prosecutor Juan Antonio Gonzalez and Jay I. Bratt, chief of the DOJ National Security Division’s counterintelligence and export control section.

Halligan did not respond to questions for this story.

Trump’s lawyers’ claim that the system wasn’t working makes even less sense when you consider that they could have filed sooner or even later.

“There was nothing that imposed a deadline on them to file. They could have done it the next day,” one South Florida lawyer said.

“I think somebody pulled a fast one in the clerk’s office to rotate it to a friendly judge. It doesn’t sound like it was done by the blind filing system,” mused another.

The Daily Beast contacted a court employee with direct knowledge of how the Trump lawsuit filing was handled, and this person said the case was placed into the federal court system’s automatic random judge “assignment wheel.”

Noble, the head of that office, also said that the proper procedure was followed on their end—and that this is backed up by a log that “is not publicly available.” She said the Trump lawsuit was placed on the West Palm Beach civil wheel, which consists of nine judges. Cannon is in a neighboring division, so she can occasionally get West Palm Beach cases.

Theoretically, that would give Trump a 1-in-9 chance of getting Cannon on the case.

However, The Daily Beast analyzed new case assignments in West Palm Beach in the week preceding Trump’s lawsuit and found that Cannon actually got a much higher share, nine of the 29 new complaints—roughly a third of all cases.

But the system still appears random. The previous Friday in West Palm Beach, Cannon got the first lawsuit of the day. Judge Donald M. Middlebrooks got the next three. Cannon got the last one.

On Monday, Aug. 22, in West Palm Beach, Cannon got the first case. Trump’s lawsuit was the second of the day in that division, and she got that too.

A head clerk of federal courts in another state told The Daily Beast that lawyers sometimes time filings as if they’re players at a casino. Sometimes it works.

“If you play cards and count the cards, I suppose they could say, ‘I’ll hold this here until I see if other judges got assignments.’ But it would be very risky because it’s random,” she said.

[admin]

Is America Headed to Another Civil War? Jordan Klepper Fingers the Pulse
by Jordan Klepper
The Daily Show with Trevor Noah
Oct 24, 2022

Is America headed towards another Civil War? Jordan Klepper chats with Rep. Adam Kinzinger and polls Arizona liberals and conservatives to find out. #DailyShow #Comedy



Transcript

There's no question that America is becoming
0:02
more and more polarized.
0:04
And it has a lot of people wondering--
0:06
could this division turn into violence?
0:09
Well, we sent Jordan Klepper to find out for another episode
0:12
of "Fingers the Pulse."
0:13
[music playing]
0:20
JORDAN KLEPPER (VOICEOVER): When you've
0:21
been to as many rallies as I have,
0:23
you get used to hearing things you don't encounter
0:26
in everyday life, like "Go to hell,"
0:28
and "Klepper is a bitch."
0:30
But lately, the. crowds have been
0:31
coalescing around one particular idea
0:34
that nobody wants to hear
0:35
- Civil War. - Civil War.
0:37
- Civil War. - Civil War.
0:38
Civil War.
0:39
JORDAN KLEPPER (VOICEOVER): The Civil War--
0:40
our country's bitter attempt at divorce
0:42
that ended with mom and dad back together in a state
0:45
of constant resentment.
0:46
43% of Americans think it's very
0:48
likely there's a Civil War in the next decade.
0:51
OK.
0:52
I'm going to be perfectly straight up and honest.
0:53
It's going to happen much sooner than that.
0:55
How soon?
0:56
Because I have an Airbnb rented in the Outer Banks.
0:58
JORDAN KLEPPER (VOICEOVER): But it turns out
1:00
a lot of Americans think this way and not just your uncle
1:03
who has been hoarding weapons and Vienna sausages
1:05
in his basement bunker.
1:06
Even sitting members of Congress, like January 6
1:09
Committee Member Adam Kinzinger.
1:10
How close are we to another Civil War?
1:13
I think we're closer than we'd like to think.
1:15
And I used to be afraid to talk about it.
1:17
Now I think it's important for us to talk about it.
1:19
To talk about a Civil War?
1:20
Yeah.
1:21
Because I think we have to be aware of where we're at.
1:23
I don't think it's going to be North and South
1:25
with large marching armies.
1:26
You know, if I live in Illinois,
1:28
there's going to be Republicans and Democrats in Illinois.
1:31
I do think it could get violent easily.
1:33
I mean, that's scary.
1:34
That is scary.
1:35
JORDAN KLEPPER (VOICEOVER): If a sitting representative
1:37
like Kinzinger thinks a second Civil War is possible,
1:39
it's something we need to take seriously.
1:41
So I decided to gather Americans
1:43
in one of our most sacred traditions of civic unity--
1:46
the corporate focus group, bringing together
1:48
conservatives and liberals in purple Arizona
1:51
who all think Civil War is a real possibility.
1:53
The Civil War is tomorrow.
1:55
What is the skill set you bring to the battlefield?
1:57
Well, I'm good with a gun.
1:58
- Yeah? - Yeah.
1:59
OK.
2:00
James?
2:02
[laughs] I have survival skills.
2:03
I was in the military.
2:05
I know how to shoot a weapon, hand-to-hand combat
2:06
if I have to.
2:08
I could stick you with a knife and not cry about it.
2:10
[laughs]
2:12
We're laughing about sticking people with a knife, but--
2:14
OK. Lansing, what skills?
2:15
Leadership JORDAN KLEPPER: Leadership?
2:16
Yeah.
2:17
I just feel there's going to need to be some leaders.
2:19
Bo, what skills do you have?
2:20
Critical thinking.
2:22
Jesus, for all of the liberals in here,
2:24
we have a leader and a critical thinker.
2:27
This is why the blue side is [bleep]..
2:28
JORDAN KLEPPER (VOICEOVER): But if America was going
2:30
to be divided in a Civil War, where would the modern day
2:33
Mason-Dixon Line fall?
2:35
It was time for a state-by-state fantasy draft--
2:37
well, nightmare draft.
2:39
JORDAN KLEPPER: We've terraformed
2:40
the states that have been red and blue to create
2:44
one land mass.
2:46
Who sees himself as conservative part
2:47
of the red map here?
2:50
Are these the states you would want?
2:52
Oh, I much prefer the red states.
2:54
What breaks your heart?
2:56
What are you going to miss?
2:57
Well, Arizona-- isn't that supposed
2:59
to be a red state now?
3:00
Let's say we give you Arizona.
3:02
Where do you want to travel to?
3:03
Well, I love California.
3:05
But it's turned into such a shithole.
3:06
Let's be fair.
3:08
As a red state guy, the blue state has the best food.
3:10
Oh, yeah.
3:11
Right.
3:12
Bo, what would you miss?
3:14
Not a ton.
3:15
As a liberal, you're feeling pretty
3:17
good about the states you get.
3:18
Honestly, I feel all right.
3:20
We got Hawaii.
3:21
JORDAN KLEPPER: You do have Hawaii.
3:22
James, what are you missing?
3:24
You're going to be in this red conglomerate, right?
3:25
Well, the family's from back east in Ohio, so, yeah,
3:27
I mean-- that would be.
3:28
You'd miss Ohio?
3:29
I wouldn't trade Cleveland for anything.
3:30
I'd trade Texas for California
3:32
so I can go to San Diego. - OK.
3:34
Any other trades?
3:35
Texas for California-- blue side,
3:36
would you allow that trade?
3:37
I'll take Austin for Cleveland,
3:39
but I don't need all of Texas.
3:40
We'll do an Austin for Cleveland.
3:41
I don't want Cleveland. He's in Cleveland.
3:43
I want San Diego.
3:44
What will you give up for San Diego?
3:45
I would give up Florida.
3:48
No thanks.
3:49
There's no takers on Florida?
3:50
No.
3:51
JORDAN KLEPPER (VOICEOVER): OK.
3:52
So I guess the ocean can have Florida,
3:54
which is helpful because it will probably take it anyway.
3:57
And now that we have our newly divided States of America,
4:00
we get to draft some new constitutions.
4:02
If there is a new America, you're going to need new laws.
4:06
Are there any laws you would want to change?
4:08
Get rid of the petty ones.
4:11
I mean, there's lots of petty laws out there.
4:13
I mean, if you pee in public, I mean,
4:14
are you really going to be in the sex crime registry
4:16
now because you peed in public?
4:17
It's stupid.
4:18
It's a crack in the system.
4:20
That's the first law that comes to head?
4:22
It's the petty laws.
4:23
You get put in the federal sex crimes registry
4:27
if you take a leak outside.
4:29
It's just pretty dumb.
4:30
That's just an example.
4:31
We just talked about a Civil War
4:33
tearing this country in two.
4:34
[laughter]
4:35
You finally get your way-- - Well, you know, I mean--
4:37
--and the first law that jumps
4:38
to mind is peeing in public.
4:41
Does your side not have toilets?
4:42
JORDAN KLEPPER (VOICEOVER): With the vision
4:44
of the new Confederacy already collapsing under the burden
4:47
of sewage infrastructure, I thought
4:49
it was time to cut to the chase and ask
4:51
the biggest question of all.
4:52
Which side wins?
4:53
We all lose.
4:54
We all lose, yeah.
4:56
There's no winning there.
4:57
What if one side loses and then refuses to concede?
5:04
JORDAN KLEPPER (VOICEOVER): Well,
5:05
I don't know if I feel any better
5:06
about the future of America.
5:07
But for now, at least we still have elections.
5:10
In fact, check out my new half hour special where I dive
5:13
into the midterms and ask the very important question--
5:16
democracy, we still cool?
5:19
If you knew you got fewer votes, you wouldn't concede.
5:21
What is conceding mean?
5:23
Yeah.
5:24
It means accepting loss.
5:25
- No. - No.
5:26
Why?
5:27
Is democracy [bleep]?
5:28
We can be [bleep] tomorrow if the wrong thing happens.
5:32
You were there January 6.
5:33
It was the most beautiful thing I ever saw.
5:35
Birds chirping, police officers screaming.
5:37
No.
5:39
[music playing]
5:45
[applause]
5:46
Thank you so much for that.
5:47
Jordan Klepper, everybody.
5:48
Before to check out--
5:50
be sure to check out Jordan's special next Tuesday at 11:30
5:52
right after this show.

[admin]

'Deep trouble': Consultant during Trump's impeachment gives his take on DOJ move
by Laurence Tribe, Constitutional Law Professor, Harvard Law School
CNN
Oct 26, 2022

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The Justice Department is asking a federal judge to force the top two lawyers from Donald Trump's White House counsel's office to testify about their conversations with the former President. This comes as the DOJ tries to break through the privilege firewall Trump has used to avoid scrutiny of his actions on January 6, 2021, according to three people familiar with the investigation.



Transcript

[ERIN BURNETT] TONIGHT, A CNN EXCLUSIVE. THE JUSTICE DEPARTMENT NOW ASKING A FEDERAL JUDGE TO FORCE TWO TOP LAWYERS FROM DONALD TRUMP'S WHITE HOUSE TO TESTIFY ABOUT CONVERSATIONS WITH HIM. THOSE LAWYERS ARE FORMER WHITE HOUSE COUNSEL PAT CIPOLLONE, AND PATRICK PHILBIN. TRUMP WAGED A SECRET COURT FIGHT TO BLOCK FORMER ADVISERS FROM TESTIFYING BEFORE A FEDERAL GRAND JURY INVESTIGATING THE EVENTS OF JANUARY 6th. OUR SENIOR JUSTICE CORRESPONDENT, EVAN PEREZ, IS OUT FRONT. EVAN, THIS COULD, I THINK, HAVE A MAJOR IMPACT ON THE INVESTIGATION IF THE JUSTICE DEPARTMENT SUCCEEDS, AND GETS THESE FORMER TRUMP LAWYERS TO TESTIFY, RIGHT?

[EVAN PEREZ] RIGHT. IT REALLY DOES HAVE THE POSSIBILITY OF GETTING PROSECUTORS INTO THE INNER CIRCLE OF DONALD TRUMP, AND HIS WHITE HOUSE. PAT CIPOLLONE WAS THE FORMER WHITE HOUSE COUNSEL. PATRICK PHILBIN WAS HIS DEPUTY. AND THEY WERE THERE DURING SOME OF THESE CONVERSATIONS AS THE FORMER PRESIDENT WAS TRYING TO IMPEDE THE TRANSFER OF POWER IN 2020, WHICH IS AFTER THE 2020 ELECTION. WHICH IS EXACTLY WHAT THE PROSECUTORS OF THE JUSTICE DEPARTMENT ARE INVESTIGATING. THE JUSTICE DEPARTMENT, SO FAR, HAS BEEN WINNING THESE SECRET PROCEEDINGS THAT ARE GOING ON AT THE COURTHOUSE HERE IN WASHINGTON. THEY GOT GREG JACOB, AND MARK SHORT, FORMER AIDES TO THE FORMER VICE PRESIDENT PENCE, TO COME BACK IN AND ANSWER QUESTIONS. THESE ARE VERY, VERY IMPORTANT QUESTIONS, ABOUT CONVERSATIONS THAT THEY HAD WITH THE FORMER PRESIDENT. SO, THE FACT THAT THEY'RE WINNING THESE FIGHTS DOES BODE WELL FOR THE JUSTICE DEPARTMENT AS THEY TRY TO GET THE COMPELLED TESTIMONY OF CIPOLLONE AND PHILBIN.

[ERIN BURNETT] EVAN, THANK YOU VERY MUCH. I WANT TO GO NOW TO THE CONSTITUTIONAL LAW PROFESSOR, AT HARVARD LAW SCHOOL, WHO ALSO CONSULTED HOUSE DEMOCRATS FOR THE IMPEACHMENT OF THEN PRESIDENT TRUMP. SO, PROFESSOR, WHAT DOES IT MEAN FOR DONALD TRUMP IF THE DOJ SUCCEEDS HERE, AND GETS IN THIS INNER CIRCLE, GETS PAT CIPOLLONE AND PAT PHILBIN'S TESTIMONY?

[LAURENCE TRIBE] IT MEANS HE'S IN DEEP TROUBLE. THERE'S NO REASON THE JUSTICE DEPARTMENT SHOULD NOT SUCCEED. WHEN A GRAND JURY DEMANDS THE TESTIMONY OF PEOPLE WHO HAVE FIRST-HAND KNOWLEDGE OF SOMEONE WHO APPEARS TO HAVE BEEN INVOLVED IN AN INSURRECTION AND A SEDITIOUS CONSPIRACY, THEY'RE ENTITLED TO GET THAT INFORMATION. IF THERE WERE AN EXECUTIVE PRIVILEGE FOR A FORMER PRESIDENT -- AND THAT'S DOUBTFUL -- IT WOULD BE OVERCOME BY THE CONTEXT: THE INFORMATION IS NEEDED FOR A CRIMINAL INVESTIGATION. IT WAS UNANIMOUS IN THE U.S. SUPREME COURT, IN BOTH CASES WHERE THE ISSUE AROSE, THAT THE NEED FOR INFORMATION IN A CRIMINAL PROCEEDING TRUMPS -- NO PUN INTENDED -- ANY EXECUTIVE PRIVILEGE. SO THERE IS NO BASIS FOR THEM TO RESIST THE ORDER THAT THEY'RE GOING TO GET FROM THE DEPARTMENT MOTION WITH THE COURT. AND THERE'S NO REASON FOR THE COURT TO DENY THAT MOTION.

[ERIN BURNETT] SO, OBVIOUSLY, THAT IS SIGNIFICANT. THERE IS ALSO WHAT'S GOING ON IN THE GRAND JURY INVESTIGATION IN GEORGIA. YOU'VE BEEN VERY CRITICAL OF SUPREME COURT JUSTICE CLARENCE THOMAS GIVING SENATOR LINDSEY GRAHAM A TEMPORARY FREEZE FROM TESTIFYING BEFORE THAT GRAND JURY IN GEORGIA. WHY DO YOU THINK THOMAS' DECISION -- WHICH, BY THE WAY, WENT AGAINST WHAT TWO OTHER COURTS ALREADY RULED, WHICH IS THAT GRAHAM SHOULD HAVE TO APPEAR BEFORE THAT GRAND JURY -- WHY DO YOU THINK THOMAS DOING THIS IS SO EGREGIOUS?

[LAURENCE TRIBE] IT'S EGREGIOUS BECAUSE IT'S ILLEGAL. IT WASN'T THE FACT THAT HE GRANTED LINDSEY'S REQUEST -- EVEN DENYING LINDSEY'S REQUEST WOULD'VE BEEN UNLAWFUL. BECAUSE 18 U.S. CODE -- ACTUALLY 28 U.S. CODE SECTION 455 -- SAYS THAT A JUSTICE OR JUDGE -- BUT IT INCLUDES A "JUSTICE" -- AND THE LANGUAGE IT USES IS "SHALL" DISQUALIFY HIMSELF IN ANY PROCEEDING IN WHICH HIS IMPARTIALITY MIGHT REASONABLY BE QUESTIONED. SO EVEN DENYING LINDSEY'S REQUEST WOULD'VE BEEN WRONG. HE SHOULD'VE JUST HANDED IT OVER TO ANOTHER JUSTICE. BUT THERE'S ANOTHER PART OF 28 U.S. CODE THAT IS SLAM DUNK APPLICABLE. IT SAYS THAT A JUSTICE "SHALL "-- AND I KEEP EMPHASIZING THE WORD "SHALL" -- IT'S NOT DISCRETIONARY -- DISQUALIFY HIMSELF. AND I'M GOING TO QUOTE THE LANGUAGE, IF "HIS SPOUSE IS KNOWN BY THE JUSTICE TO HAVE AN INTEREST THAT COULD BE SUBSTANTIALLY AFFECTED BY THE OUTCOME." NOW, WE KNOW THAT GINNI THOMAS HAS AN INTEREST. SHE MADE IT CLEAR. IT'S NOT EVEN SECRET. SHE WAS AT THE JANUARY 6th RALLY. SHE SENT AT LEAST 29 TEXTS A FEW WEEKS EARLIER TO THE CHIEF OF STAFF, MARK MEADOWS, URGING HIM TO BACK UP THE PRESIDENT'S EFFORT TO PREVENT THE TRANSFER OF POWER TO BIDEN. SHE SAID THE WHOLE BIDEN FAMILY SHOULD BE TRIED FOR TREASON. THEN THERE WERE TEXTS THAT SHE SENT TO THE LEGISLATORS OF ARIZONA AND WISCONSIN, URGING THEM TO SUBMIT PHONY ELECTORAL SLATES TO PREVENT THE TRANSFER OF POWER. SO SHE IS INTIMATELY INTERESTED IN THE OUTCOME OF THE PROCEEDING IN GEORGIA WHERE THE SAME QUESTION, THE QUESTION OF WHETHER FORMER PRESIDENT TRUMP, AND MEMBERS OF THE HOUSE AND SENATE, INCLUDING SENATOR GRAHAM, WERE ENGAGED IN AN EFFORT TO STRONG-ARM PEOPLE, LIKE RAFFENSPERGER, TO CREATE PHONY VOTES. SO SHE IS IN THE MIDDLE OF IT. HE HAS TO KNOW THAT. IT'S NOT A QUESTION OF PILLOW TALK. EVERYONE IN THE COUNTRY KNOWS IT. IT'S OPEN AND SHUT.

[ERIN BURNETT] WELL, AS YOU SAY, IT'S NOT DISCRETIONARY, IT'S "SHALL." AND THAT OPERATIVE WORD CARRIES SO MUCH WEIGHT IN THIS CASE. PROFESSOR, THANK YOU SO MUCH.

[admin]

Pastor Jamal Bryant DEMOLISHES Herschel Walker. White Evangelicals in Disarray
by Pastor Jamal Bryant
The Benjamin Dixon Morning Show
Oct 31, 2022

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Don’t get mad now. White evangelicals stay preaching politics in their pulpits. Jamal Bryant does it better.

Transcript

[Pastor Jamal Bryant] Ladies and gentlemen, when the Republican party of Georgia moved Herschel Walker from Texas to Georgia so that he could run for Senate, it's because change was taken too fast in the post-Antebellum South. The state had been flipped blue, and there are some principalities that were not prepared for a black man, and a Jewish man, to go to Senate at the exact same time. So they figured that they would delude us, by picking somebody who they thought would in fact represent us better with a football, than with a degree in philosophy. They thought we were so slow, that we were so stupid, that we would elect the lowest caricature of a stereotypical broken black man, as opposed to somebody who is educated, and erudite, and focused.

Y'all aren't ready for me today.

Since Herschel Walker was 16 years old, white men been telling him what to do. Telling him what school to go to, where to live, where to eat, where to buy a house, where to walk, where to sit down, where to sleep, where to pay for abortions, where to buy a gun. And you think they not gonna tell him how to vote in 2022?

We don't need a Walker, we need a runner. We need somebody who gonna run, and tell the truth about January 6. We need somebody who gonna run, and push for the cancellation of student loan debts. We need somebody who gonna run, and make the former president respond to a subpoena.

We don't need a Walker, we need somebody who will be steadfast, unmovable, always abounded, knowing that your labor is not in vain.

Georgia, I need you to know: the slave Negroes y'all are used to don't live here no more. We can think by ourselves, function for ourselves, and vote for ourselves. Why? Cause we don't need a Walker.

[admin]

Trump-backed Wisconsin GOP candidate and 2020 election denier claims Republicans will 'never lose another election' in the state if he gets voted into office
by Hannah Getahun
Business Insider
11/2/22

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Wisconsin Republican gubernatorial candidate Tim Michels speaks as he appears with former President Donald Trump at a rally in Waukesha, Wis., on Aug. 5, 2022. AP Photo/Morry Gash, File

* Wisconsin GOP gubernatorial candidate Tim Michels said Republicans would never lose an election in the state.

* "Tim Michels is a danger to our democracy," Gov. Tony Evers said on Twitter.

*The Michels campaign clarified the comment, saying that Michels would boost support for Republicans.

Wisconsin GOP candidate Tim Michels said Republicans would never lose a race in the state should he become governor, concerning opponents that he would take steps to alter election results once in office.

American Bridge 21st Century, a left-leaning political action committee, released an audio clip Monday of Michels recorded during a campaign event in Jackson County, Wisconsin. Michels is running for governor against Democratic incumbent Governor Tony Evers.

"Republicans will never lose another election in Wisconsin after I'm elected governor," Michels, who co-owns the state's largest construction company, can be heard saying.

In response to the audio clip, posted on Twitter, Evers replied, saying: 'Tim Michels is a danger to our democracy."

"Democracy is on the ballot in this election," Sam Roecker, a spokesperson for Evers told Insider. "Tim Michels has made it clear he will do anything in his power to make it harder for Wisconsinites to vote and could even overturn the fair results of our elections if he doesn't like the outcome."

Tony Evers@Tony4WI·Follow
Governor candidate, WI

Folks, we’ve known this for awhile – Tim Michels is a danger to our democracy.

When you head to the polls on Election Day, remember that we’re fighting to protect our democracy, voting rights, and free, fair, and secure elections.

American Bridge 21st Century @American_Bridge

GOP #WIGov nominee Tim @MichelsForGov said the quiet part out loud: "Republicans will never lose another election in Wisconsin after I'm elected governor."

Democracy is on the line in Wisconsin. Michels must be stopped.

Embedded video

3:59 PM · Oct 31, 2022

Michels, a candidate endorsed by former President Donald Trump, has questioned the results of the 2020 election and has declined to answer questions as to whether or not he would certify presidential election results as governor should a Democrat win the state in a national election.

Michels also suggested that he could pursue an unconstitutional effort to decertify Biden's 2020 win in Wisconsin once he became governor, telling local station WKOW that he would "need to see the details."

In a statement to Insider, the Michels campaign denied the audio had anything to do with election integrity. Rather, the campaign said, Michels would garner more support for Republican candidates in the state by implementing "lower taxes, better schools, uniform election laws and safer communities."

"While revving up supporters to get out and vote, Tim was referring to winning and leading and then being rewarded by voters for doing a good job," Brian Fraley, a spokesperson for Michels, told Insider in a statement.

"Any attempt to make more out of that quip shows just how pathetic and desperate Tony Evers and his supporters are getting as we approach election day. They want to talk about anything other than his four years of failure."

An NBC analysis found 60% of Republican candidates in five key battleground states deny or question whether or not President Joe Biden won the 2020 election.

Experts told The New York Times that election deniers who win key offices could refuse to accept the 2024 elections, resulting in legal battles across the country.

Michels is looking to unseat Evers next Tuesday in a race that has been rated a "toss-up" by Inside Elections, The Cook Political Report, and Sabato's Crystal Ball.

[admin]

Trump lawyers saw Justice Thomas as 'only chance' to stop 2020 election certification: “We want to frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt,” Trump attorney Kenneth Chesebro wrote in an email exchange.
by Kyle Cheney, Josh Gerstein and Nicholas Wu
Politico
11/02/2022 10:17 AM EDT
Updated: 11/02/2022 03:09 PM EDT
https://www.politico.com/news/2022/11/0 ... n-00064592

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The emails were part of a batch that lawyer John Eastman had sought to withhold from the Jan. 6 select committee but that a judge ordered turned over anyway, describing them as evidence of likely crimes committed by Eastman and Donald Trump. | J. Scott Applewhite/AP Photo

Donald Trump’s attorneys saw a direct appeal to Supreme Court Justice Clarence Thomas as their best hope of derailing Joe Biden’s win in the 2020 presidential election, according to emails newly disclosed to congressional investigators.

“We want to frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt,” Trump attorney Kenneth Chesebro wrote in a Dec. 31, 2020, email to Trump’s legal team. Chesebro contended that Thomas would be “our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress.”

“I think I agree with this,” attorney John Eastman replied later that morning, suggesting that a favorable move by Thomas or other justices would “kick the Georgia legislature into gear” to help overturn the election results.

The messages were part of a batch of eight emails — obtained by POLITICO — that Eastman had sought to withhold from the Jan. 6 select committee but that a judge ordered turned over anyway, describing them as evidence of likely crimes committed by Eastman and Trump.

They thought we were so slow, that we were so stupid, that we would elect the lowest caricature of a stereotypical broken black man, as opposed to somebody who is educated, and erudite, and focused.

Y'all aren't ready for me today.

-- Pastor Jamal Bryant DEMOLISHES Herschel Walker. White Evangelicals in Disarray, The Benjamin Dixon Morning Show, Oct 31, 2022

They were transmitted to the select committee by Eastman’s attorneys last week, but remained largely under wraps until early Wednesday morning.

House General Counsel Douglas Letter acknowledged Wednesday afternoon that his office effectively released the messages by including a link to them in copies of messages publicly filed with the 9th Circuit Court of Appeals.

“We were not aware that the links in Dr. Eastman’s email remained active, and had no intention to provide this type of public access to the materials at this stage. Providing public access to this material at this point was purely inadvertent on our part,” Letter told the appeals court in a brief letter. The emails, as produced to the committee, included formatting errors that removed “i”s and “l”s. POLITICO has included the missing letters for clarity.

[DELETE]

From: Eastman, John [DELETE]
Sent: Thursday, December 31, 2020 9:45 AM
To: Kenneth Chesebro [DELETE] Bruce Marks [DELETE] Kurt Hilbert [DELETE]
Cc: Chris Gardner [DELETE] Kaufman, Alex B. [DELETE] Nina Khan [DELETE] CMitchell [DELETE] Tom Sullivan [DELETE]
Subject: Re: Confidential

I think I agree with this. If the court were to give us "likely", that may be enough to kick the Georgia Legislature into gear, because I've been getting a lot of calls from them indicating to me they're leaning that way.

John

_____________________________________________

From: Kenneth Chesebro [DELETE]
Sent: Thursday, December 31, 2020 7:35 AM
To: Bruce Marks [DELETE] Kurt Hilbert [DELETE] Eastman, John [DELETE]
Cc: Chris Gardner [DELETE] Kaufman, Alex B. [DELETE] Nina Khan [DELETE] Tom Sullivan [DELETE]
Subject: Re: Confidential

I see.

I haven't focused on the relief sought, but if what we're seeking as something that TENTATIVELY holds, either by way of PI or DJ, that very likely the electoral votes sent in by the Biden electors aren't valid, because the election failed, as long as that's what the district court, or 11th Cir., or Supreme Court says, that's the key, and probably good enough.

The point is to have the court say that probably the election was void, which ought to be enough to prevent the Senate from counting the Biden electoral votes from Georgia, right?

Merely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia, particularly if Pence has the legal ability and will to insert himself at least enough to win delay.

So I would go for non-final relief, trying to get a statement by a court helping Trump-Pence by Jan. 6.

Possibly Thomas would end up being the key here -- circuit justice, right? We want to frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt. Realistically, our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress, is from Thomas -- do you agree, Prof. Eastman?

Ken

[DELETE]

Thomas is the justice assigned to handle emergency matters arising out of Georgia and would have been the one to receive any urgent appeal of Trump’s lawsuit to the Supreme Court — a fact that seemed to be part of the Trump legal team’s calculus.

Rulings from so-called circuit justices are typically stopgap measures aimed at preserving the status quo until the full Supreme Court weighs in, but the Trump lawyers hoped a favorable order from Thomas would embolden state GOP-controlled legislatures, Congress — or then-Vice President Mike Pence — to block final certification of Joe Biden’s victory.

In another Dec. 31 email, Chesebro explicitly laid out this strategy:

"[ I]f we can just get this case pending before the Supreme Court by Jan. 5, ideally with something positive written by a judge or justice, hopefully Thomas, I think it’s our best shot at holding up the count of a state in Congress,” Chesebro said.

[DELETE]

From: Kenneth Chesebro [DELETE]
Sent: Thursday, December 31, 2020 9:55 AM
To: Kurt Hilbert [DELETE] Bruce Marks [DELETE] Eastman, John [DELETE]
Cc: Chris Gardner [DELETE] Kaufman, Alex B. [DELETE] Nina Khan [DELETE] Tom Sullivan [DELETE]
Subject: Re: Confidential

I know we're at the district court level, and late in the day, but if we can just get this case pending before the Supreme Court by Jan. 5, ideally with something positive written by a judge or justice, hopefully Thomas, I think it’s our best shot at holding up the count of a state in Congress.

WI and PA have strong cert. petitions, but in both cases, at least the state courts involved issued timely rulings, and Trump & Pence have had an opportunity to file cert. petitions, and thus a chance to have the Supreme Court weigh in before the count.

But the Georgia courts just sat on this for weeks. No opportunity for judicial review. On a showing of a reasonable chance of success of the merits, it would be unconscionable for Congress to count the electoral votes for Biden. It would set a horrible precedent -- that a State can be represented in the Electoral College despite serious concerns about the regularity of the election, which it suppressed through its courts.

Maybe that should be one argument for preliminary relief, that to deny relief would incentivize the denial of due process in future presidential elections. States could do what they wanted, and ignore the rule of law, confident that there would be no judicial interference. What's the point of having life-tenured federal judges if they won't intervene to stop state courts from doing this?

Ken

[DELETE]

Chesebro’s emails continued to offer detailed strategy proposals about ways to delegitimize Biden’s victory on Jan. 6 and beyond.

In one scenario, Chesebro proposed encouraging Senate Republicans to filibuster long enough to delay the joint session of Congress on Jan. 6, ignoring limitations on the length of debate. He also described how Trump allies could use inaction by the courts to build political pressure against Biden’s inauguration.

“Hard to have enormous optimism about what will happen on Jan. 6, but a lot can happen in the 13 days left until then, and I think having as many states still under review (both judicially and in state legislatures) as possible is ideal,” Chesebro wrote Trump campaign attorney Justin Clark on Dec. 24, 2020. It’s unclear how or whether Clark responded to Chesebro’s message.

The New York-based lawyer has been scrutinized by the Jan. 6 select committee, as well as prosecutors in Fulton County, Ga., who are investigating Trump’s efforts to subvert the election there.

The Trump’s team’s effort found virtually no traction at the high court. The only outward signs of dissension among the justices were mild, like a Dec. 11 order where the court rejected a bid by Texas to challenge the vote counts in four other states. Thomas and Justice Samuel Alito issued a brief statement saying they’d have accepted jurisdiction over the case, but joined the other justices in denying Texas any relief.

Eastman, an architect of Trump’s last-ditch bid to subvert the 2020 election, once clerked for Thomas and had corresponded with his wife, Virginia, in the weeks before Jan. 6.

Eastman played a central role in pressuring Pence to single-handedly subvert the 2020 election when he presided over the Jan. 6 session of Congress — a legally required proceeding to count electoral votes and certify the election results.

In his conversations with Pence’s staff on Jan. 4 and 5, Eastman suggested that he believed Thomas would likely support their efforts. Eastman’s emails, which he has fought to keep from the select committee, have yielded some of the most potent evidence against Trump’s team — including a March 28 ruling from a federal judge declaring it likely that Trump and Eastman had criminally conspired to subvert the election.

Federal prosecutors have also scrutinized Eastman, who pleaded the Fifth in testimony to the Jan. 6 panel. FBI agents seized Eastman’s cell phone in June as part of a wide-ranging investigation related to efforts by Trump allies to undermine the election results.

Ginni Thomas became the focus of congressional investigators after text message emerged showing her urging Trump’s chief of staff, Mark Meadows, to continue efforts to keep Trump in power despite losing the 2020 election. She interviewed with the Jan. 6 panel earlier in the fall.

The emails also shed new light on an effort to get Trump to sign documents connected to a Dec. 31, 2020, federal lawsuit challenging the election results in Georgia, including acute concerns Trump’s lawyers voiced during that chaotic period that Trump might put himself in legal jeopardy if he attested to the voter fraud data contained in it.

From: Eastman, John [DELETE]
Sent: Thursday, December 31, 2020 12:15 PM MST
To: Kaufman, Alex B. [DELETE] Kurt Hilbert [DELETE]
Subject: RE: Link to entire case

Keeping Bruce and his team off this for the moment.

Here's the issue. The complaint incorporates by reference the state court challenge. Although the President signed a verification for that back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate. And I have no doubt that an aggressive DA or US Atty someplace will go after both the President and his lawyers once all the dust settles on this.

I know it is late in the day, but do we need to incorporate that complaint by reference?

John

[DELETE]

“I have no doubt that an aggressive DA or US Atty someplace will go after both the President and his lawyers once all the dust settles on this,” Eastman wrote in an email to two other private attorneys working on Trump election challenges, Alex Kaufman and Kurt Hilbert.

After some exchanges, including with Trump White House lawyer Eric Herschmann, the lawyers agreed they would remove some of the specific figures before Trump swore to the accuracy of the lawsuit.

But they also debated whether the federal complaint should “incorporate by reference” the voter fraud data included in an earlier state-level lawsuit. Eastman warned that since the state lawsuit was filed, evidence had disproved some of the voter fraud data contained in it — and having Trump point to the earlier data would be erroneous.

“I know it is late in the day, but do we need to incorporate that complaint by reference?” Eastman wondered.

It’s unclear how the other attorney responded to Eastman. But in a separate email chain with additional lawyers, an intensive effort was underway to get the court filings in front of Trump so they could be signed and notarized in time to file the lawsuit that evening.

Trump, they were informed, was on a plane back to D.C. and they needed him to sign and notarize the document. Trump attorney Cleta Mitchell said Trump’s personal assistant had informed her they had no access to a notary until Monday.

“So, now what?” she wondered. “Can we figure out a way to file this without a verification?

“There’s no one they can call to come to the White House that’s a notary?” Chris Gardner, a Virginia attorney and former GOP House aide assisting the president’s legal team, asked in an email sent just before 4 P.M. on New Year’s Eve. “I don’t know how we file without it. Presidential trip to a UPS store?”

Mitchell later said she was exploring the possibility of getting a notary to certify Trump’s signature via a Zoom call.

Court records show Trump’s signature was ultimately attested to by William McCathran, an assistant executive clerk working for the White House.

Trump’s signature was key to U.S. District Court Judge David Carter’s Oct. 19 ruling that the emails must be disclosed to the House Jan. 6 committee. Carter said Trump signed the verification to a federal court complaint under penalty of perjury despite evidence that he’d been told many of the fraud claims in the lawsuit were inaccurate.

The messages “show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public,” wrote Carter, an appointee of President Bill Clinton.