Part 1 of 2
Brief of the United States
Donald J. Trump v. United States of America, No. 22-13005 No. 22-13005
October 14, 2022
Donald J. Trump v. United States of America, No. 22-13005
No. 22-13005
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
DONALD J. TRUMP,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of Florida
BRIEF OF THE UNITED STATES
JUAN ANTONIO GONZALEZ
United States Attorney
Southern District of Florida
99 NE 4th Street, 8th Floor
Miami, FL 33132
305-961-9001
MATTHEW G. OLSEN
Assistant Attorney General
JAY I. BRATT
Chief, Counterintelligence and Export
Control Section
JULIE EDELSTEIN
SOPHIA BRILL
JEFFREY M. SMITH
Attorneys
National Security Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
202-233-0986
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rules 26.1-1 and 28-1(b), the undersigned hereby certifies that the following have an interest in the outcome of this case:
American Broadcasting Companies, Inc. (DIS)
Associated Press
Bloomberg, LP
Bratt, Jay I.
Brill, Sophia
Cable News Network, Inc. (WBD)
Cannon, Hon. Aileen M.
Caramanica, Mark Richard
CBS Broadcasting, Inc (CBS)
Corcoran, M. Evan
Cornish, Sr., O’Rane M.
Dearie, Hon. Raymond J.
Dow Jones & Company, Inc. (DJI)
Edelstein, Julie
Eisen, Norman Larry
E.W. Scripps Company (SSP)
Finzi, Roberto
Fischman, Harris
Former Federal and State Government Officials
Fugate, Rachel Elise
Gonzalez, Juan Antonio
Gray Media Group, Inc. (GTN)
Gupta, Angela D.
Halligan, Lindsey
Inman, Joseph M.
Karp, Brad S.
Kessler, David K.
Kise, Christopher M.
Knopf, Andrew Franklin
Lacosta, Anthony W.
LoCicero, Carol Jean
McElroy, Dana Jane
Minchin, Eugene Branch
NBC Universal Media, LLC (CMCSA)
Patel, Raj K.
Rakita, Philip
Reeder, Jr., L. Martin
Reinhart, Hon. Bruce E.
Rosenberg, Robert
Seidlin-Bernstein, Elizabeth
Shapiro, Jay B.
Shullman, Deanna Kendall
Smith, Jeffrey M.
The New York Times Company (NYT)
The Palm Beach Post
Times Publishing Company
Tobin, Charles David
Trump, Donald J.
Trusty, James M.
United States of America
Wertheimer, Fred
WP Company, LLC
Dated: October 14, 2022 /s/ Sophia Brill
Sophia Brill
STATEMENT REGARDING ORAL ARGUMENT
The government respectfully submits that oral argument would assist the Court. In its October 5, 2022 order granting the government’s motion to expedite this appeal, the Court indicated that “the appeal will be assigned to a special merits panel,” which “will decide when and how to hear oral argument.”
TABLE OF CONTENTS
• CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
• DISCLOSURE STATEMENT ..................................................................................... c-1
• STATEMENT REGARDING ORAL ARGUMENT ................................................ i
• TABLE OF AUTHORITIES .......................................................................................... iv
• INTRODUCTION ............................................................................................................. 1
• STATEMENT OF JURISDICTION ............................................................................ 4
• STATEMENT OF ISSUES .............................................................................................. 4
• STATEMENT OF THE CASE ...................................................................................... 5
• A. Factual Background ................................................................................................. 5
• B. Procedural History .................................................................................................. 10
• 1. Initiation of Plaintiff’s suit..................................................................................... 10
• 2. The district court’s order and stay proceedings .................................................. 12
• 3. The special master proceedings ............................................................................ 16
• 4. Other appellate proceedings ................................................................................. 17
• C. Standards of Review ............................................................................................... 17
• SUMMARY OF ARGUMENT ...................................................................................... 18
• ARGUMENT...................................................................................................................... 20
• I. THE DISTRICT COURT ERRED IN EXERCISING EQUITABLE
JURISDICTION ................................................................................................................ 20
• A. Plaintiff Failed to Establish the “Foremost” Factor Needed for the
Exercise of Jurisdiction ................................................................................................. 22
• B. The Remaining Richey Factors Weigh Further Against the Exercise of
Jurisdiction ....................................................................................................................... 23
• II. THE DISTRICT COURT ERRED BY ENJOINING THE
GOVERNMENT FROM REVIEWING OR USING THE SEIZED
RECORDS ........................................................................................................................... 28
• A. Plaintiff Has No Plausible Claims of Executive Privilege ........................... 29
• 1. Plaintiff cannot invoke executive privilege to bar the Executive Branch’s
review and use of its own records ................................................................................ 29
• 2. United States v. Nixon forecloses any executive privilege claims ........................ 31
• 3. Any claim of executive privilege as to the records bearing classification
markings would fail for additional reasons ................................................................. 36
• B. Plaintiff Has No Plausible Claims of Attorney-Client Privilege That
Would Justify an Injunction ......................................................................................... 38
• C. The Government and the Public Suffer Irreparable Injury from the
Injunction Pending the Special-Master Review ..................................................... 40
• D. Plaintiff’s Purported Factual Disputes Are Irrelevant ................................... 43
• 1. Plaintiff’s suggestion that he might have declassified the seized records is
irrelevant .......................................................................................................................... 43
• 2. Plaintiff’s suggestion that he might have categorized seized records as
“personal” records under the PRA only weakens his executive privilege claims .. 45
• III. THE COURT SHOULD REVERSE THE DISTRICT COURT’S
REQUIREMENT THAT THE GOVERNMENT SUBMIT THE RECORDS
FOR A SPECIAL-MASTER REVIEW ....................................................................... 47
• CONCLUSION ................................................................................................................. 51
• CERTIFICATE OF COMPLIANCE .......................................................................... 52
• CERTIFICATE OF SERVICE ..................................................................................... 53
TABLE OF AUTHORITIES
Cases: Page:
• Al Odah v. United States,
• 559 F.3d 539 (D.C. Cir. 2009).......................................................................................... 50
• Bonner v. City of Prichard,
• 661 F.2d 1206 (11th Cir. 1981) ........................................................................................ 13
• BP P.L.C. v. Mayor and City Council of Baltimore,
• 141 S. Ct. 1532 (2021) ....................................................................................................... 50
• CIA v. Sims,
• 471 U.S. 159 (1985) ........................................................................................................... 37
• Cobbledick v. United States,
• 309 U.S. 323 (1940) ...................................................................................................... 41-42
• Cooter & Gell v. Hartmarx Corp.,
• 496 U.S. 384 (1990) ........................................................................................................... 18
• Deaver v. Seymour,
• 822 F.2d 66 (D.C. Cir. 1987) ............................................................................................ 26
• Dep’t of Navy v. Egan,
• 484 U.S. 518 (1988) ..................................................................................................... 31, 37
• Douglas v. City of Jeanette,
• 319 U.S. 157 (1943) ........................................................................................................... 21
• Hunsucker v. Phinney,
• 497 F.2d 29 (5th Cir. 1974) .................................................................................. 13, passim
• In re Grand Jury Subpoenas,
• 454 F.3d 511 (6th Cir. 2006) ............................................................................................ 25
• In re Sealed Case,
• 121 F.3d 729 (D.C. Cir. 1997).......................................................................................... 32
• In re Sealed Search Warrant,
• No. 20-MJ-3278, 2020 WL 6689045 (S.D. Fla. Nov. 2, 2020) aff’d,
• 11 F.4th 1235 (11th Cir. 2021) ......................................................................................... 25
• In re Search of 4801 Fyler Ave.,
• 879 F.2d 385 (8th Cir. 1989) ...................................................................................... 22, 23
• In re Search Warrant Issued June 13, 2019,
• 942 F.3d 159 (4th Cir. 2019) ............................................................................................ 48
• In re Wild,
• 994 F.3d 1244 (11th Cir. 2021) ........................................................................................ 42
• Jones v. Fransen,
• 857 F.3d 843 (11th Cir. 2017) .......................................................................................... 49
• Judicial Watch v. NARA,
• 845 F. Supp. 2d 288 (D.D.C. 2012) ................................................................................ 46
• Keystone Driller Co. v. General Excavator Co.,
• 290 U.S. 240 (1933) ........................................................................................................... 38
• Mohawk Industries, Inc. v. Carpenter,
• 558 U.S. 100 (2009) ........................................................................................................... 50
• Munaf v. Geren,
• 553 U.S. 674 (2008) ........................................................................................................... 27
• Murphy v. Sec’y, U.S. Dep’t of Army,
• 769 F. App’x. 779 (11th Cir. 2019) .................................................................................. 37
• *Nixon v. Administrator of General Services,
• 433 U.S. 425 (1977) ................................................................................................. 3, passim
• Ramirez v. Collier,
• 142 S. Ct. 1264 (2022) ....................................................................................................... 38
• Ramsden v. United States,
• 2 F.3d 322 (9th Cir. 1993) .......................................................................................... 24, 26
• *Richey v. Smith,
• 515 F.2d 1239 (5th Cir. 1975) .............................................................................. 13, passim
• Snepp v. United States States,
• 544 U.S. 507 (1980) ........................................................................................................... 51
• Suarez-Valdez v. Shearson Leahman/American Express, Inc.,
• 858 F.2d 648 (11th Cir. 1988) .......................................................................................... 51
• Trump v. Thompson,
• 20 F. 4th 10 (D.C. Cir. 2021) ........................................................................................... 32
• Trump v. Thompson,
• 142 S. Ct. 680 (2022) ................................................................................................... 29, 32
• Trump v. United States,
• 2022 WL 4366684 (11th Cir. Sept. 21, 2022) ....................................................... 2, passim
• Trump v. Vance,
• 140 S. Ct. 2412 (2020) ....................................................................................................... 32
• United States v. Asgari,
• 940 F.3d 188 (6th Cir. 2019) ............................................................................................ 41
• United States v. Chapman,
• 559 F.2d 402 (5th Cir. 1977) ................................................................................ 16, passim
• United States v. Daoud,
• 755 F.3d 479 (7th Cir. 2014) ............................................................................................ 41
• United States v. Dionisio,
• 410 U.S. 1 (1973) ............................................................................................................... 41
• United States v. Harte-Hanks Newspapers,
• 254 F.2d 366 (5th Cir. 1958) ............................................................................................ 23
• *United States v. Nixon,
• 418 U.S. 683 (1974) ................................................................................................. 3, passim
• United States v. O’Hara,
• 301 F.3d 563 (7th Cir. 2002) ............................................................................................ 41
• United States v. Reynolds,
• 345 U.S. 1 (1953) ............................................................................................................... 41
• United States v. Search of Law Office, Residence, & Storage Unit,
• 341 F.3d 404 (5th Cir. 2003) ............................................................................................ 26
• United States v. Truong Dinh Hung,
• 629 F.2d 908 (4th Cir. 1980) ............................................................................................ 44
• Vital Pharmaceuticals, Inc. v. Alfieri,
• 23 F.4th 1282 (11th Cir. 2022) ............................................................................. 17, 18, 28
• Whole Woman’s Health v. Jackson,
• 142 S. Ct. 522 (2021) ......................................................................................................... 49
• Yamaha Motor Corp. v. Calhoun,
• 516 U.S. 199 (1999) ........................................................................................................... 50
• Younger v. Harris,
• 401 U.S. 37 (1971) ....................................................................................................... 21, 25
• Statutes & Other Authorities: Page:
• 18 U.S.C. § 793............................................................................................................ 8, passim
• 18 U.S.C. § 1519 ......................................................................................................... 8, 33, 44
• 18 U.S.C. § 2071 ......................................................................................................... 8, passim
• 28 U.S.C. § 1291 ..................................................................................................................... 4
• 28 U.S.C. § 1292 ......................................................................................................... 4, passim
• 44 U.S.C. § 2201 ............................................................................................................... 5, 46
• 44 U.S.C. § 2202 ............................................................................................................... 5, 24
• 44 U.S.C. § 2203 ............................................................................................................... 5, 45
• 44 U.S.C. § 2204 ..................................................................................................................... 6
• 44 U.S.C. § 2205 ..................................................................................................................... 6
• Exec. Order 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010) ............................................ 5, passim
Statutes & Other Authorities: Page:
• Fed. R. App. P. 32 ................................................................................................................ 52
• Fed. R. Crim. P. 41 ..................................................................................................... 4, passim
• Fed. R. Civ. P. 53 ............................................................................................................ 11, 21
• Fed. R. Civ. P. 65 .................................................................................................................. 14
INTRODUCTION
This appeal stems from an unprecedented order by the district court restricting an ongoing criminal investigation by prohibiting the Executive Branch from reviewing and using evidence—including highly classified government records—recovered in a court-authorized search. Before the search, Plaintiff, former President Donald J. Trump, had represented in response to a grand-jury subpoena that he had returned all records bearing classification markings. The government applied for a search warrant after developing evidence that Plaintiff’s response to the grand-jury subpoena was incomplete and that efforts may have been undertaken to obstruct the investigation. A magistrate judge found probable cause to believe that a search of Plaintiff’s premises would uncover evidence of crimes, including the unauthorized retention of national defense information and obstruction of justice. The government executed its search in accordance with filter procedures approved by the magistrate judge to ensure protection of any materials that might be subject to attorney-client privilege. The search recovered, among other evidence, roughly 100 documents bearing classification markings, including markings reflecting the highest classification levels and extremely restricted distribution.
Two weeks later, Plaintiff initiated this civil action requesting the appointment of a special master to review claims of attorney-client and executive privilege and an injunction barring the government from further review and use of the seized records in the meantime, in addition to raising claims for return of property. District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are resolved through ordinary criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief Plaintiff sought, enjoining further review or use of any seized materials, including those bearing classification markings, “for criminal investigative purposes” pending a special-master review process that will last months. DE.64:23-24. This Court has already granted the government’s motion to stay that unprecedented order insofar as it relates to the documents bearing classification markings. The Court should now reverse the order in its entirety for multiple independent reasons.
Most fundamentally, the district court erred in exercising equitable jurisdiction to entertain Plaintiff’s action in the first place. The exercise of equitable jurisdiction over an ongoing criminal investigation is reserved for exceptional circumstances, and Plaintiff failed to meet this Court’s established standards for exercising that jurisdiction here. The district court itself acknowledged that there has been no showing that the government acted in “callous disregard” of Plaintiff’s rights. As a panel of this Court rightly determined, that by itself “is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.” Trump v. United States, 2022 WL 4366684, at *7 (11th Cir. Sept. 21, 2022) (granting motion to stay). The remaining factors under this Court’s precedent likewise dictate that the district court’s exercise of jurisdiction was error. The Court should therefore vacate the district court’s order with instructions to dismiss Plaintiff’s civil action.
Even if the district court properly exercised jurisdiction, it erred in ordering a special-master review for claims of executive and attorney-client privilege and enjoining the government’s use of the seized records in the meantime. Plaintiff has no basis to assert executive privilege to preclude review of Executive Branch documents by “the very Executive Branch in whose name the privilege is invoked.” Nixon v. Administrator of General Services, 433 U.S. 425, 447-48 (1977) (Nixon v. GSA). Even if such an assertion could be plausible in some circumstances, executive privilege is a qualified privilege that is overcome where, as here, there is a “demonstrated, specific need” for evidence in criminal proceedings. United States v. Nixon, 418 U.S. 683, 713 (1974). And although that conclusion applies to all of the seized records, it is especially true as to the records bearing classification markings because those records are central to—indeed, the very objects of—the government’s ongoing criminal investigation.
Nor has Plaintiff asserted a claim of personal attorney-client privilege that would justify the district court’s order. He has no plausible claim of such a privilege with respect to the records bearing classification markings or any other government documents related to his official duties. And neither Plaintiff nor the district court demonstrated why the filter procedures here were insufficient to protect any potential claims of personal privilege with respect to any remaining documents. The Court should therefore reverse the district court’s injunction and end the special master’s review.
STATEMENT OF JURISDICTION
The district court purported to exercise jurisdiction pursuant to Federal Rule of Criminal Procedure 41(g) and its equitable jurisdiction. On September 5, 2022, the district court entered an order enjoining the government from further review and use of the seized records for criminal investigative purposes pending review by a special master of Plaintiff’s claims of executive and attorney-client privilege. DE.64. On September 8, 2022, the government filed a timely appeal. DE.68. This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and 28 U.S.C. § 1291. See infra Part III.
STATEMENT OF ISSUES
1. Whether the district court erred in exercising jurisdiction over Plaintiff’s request for injunctive and other relief to constrain the government’s review and use of all records seized pursuant to a court-authorized search in an ongoing criminal investigation.
2. Whether the district court erred by enjoining the government from reviewing and using records seized during that search for criminal investigative purposes, including records bearing classification markings, pending a months-long special-master review of Plaintiff’s claims of executive and attorney-client privilege.
3. Whether the district court erred by ordering a special-master review of all seized records, including records bearing classification markings, where Plaintiff has no plausible claims of executive privilege and where the government implemented filter procedures to identify and protect attorney-client communications.
STATEMENT OF THE CASE
A. Factual Background
Plaintiff’s term of office ended in January 2021. Over the next year, the National Archives and Records Administration (NARA) endeavored to recover what appeared to be missing records subject to the Presidential Records Act (PRA), 44 U.S.C. § 2201 et seq. DE.48-1:6. The PRA provides that the United States retains “complete ownership, possession, and control of Presidential records,” 44 U.S.C. § 2202, which include all records “created or received by the President” or his staff “in the course of conducting activities which relate to or have an effect upon” the President’s official duties, id. § 2201(2). The PRA specifies that when a President leaves office, NARA “shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” Id. § 2203(g)(1).
In response to repeated requests from NARA, Plaintiff eventually provided NARA with 15 boxes of records in January 2022. DE.48-1:6. NARA discovered that the boxes contained “items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.” Id. Material is marked as Top Secret if its unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage” to national security. Exec. Order 13,526 § 1.2(1), 75 Fed. Reg. 707, 707 (Jan. 5, 2010).
NARA referred the matter to the Department of Justice (DOJ), noting that highly classified records appeared to have been improperly transported and stored. MJ- DE.125:7-8.1 DOJ then sought access from NARA to the 15 boxes under the PRA’s procedures governing presidential records in NARA’s custody. DE.48-1:6-7; see 44 U.S.C. § 2205(2)(B). Plaintiff, after receiving notification of the government’s request, requested multiple extensions of the production date and purported to make “a protective assertion of executive privilege” with regard to the materials. DE.48-1:7. On May 10, 2022, NARA explained to Plaintiff that any assertion of executive privilege would be overcome by the need for evidence in a criminal investigation and informed him that the records would be produced to the Federal Bureau of Investigation (FBI). DE.48-1:9. Plaintiff did not pursue any claim of executive privilege in court, see 44 U.S.C. § 2204(e), and he did not suggest that any documents bearing classification markings had been declassified.
During this time, the FBI developed evidence that additional boxes remaining at Plaintiff’s residence at the Mar-a-Lago Club in Palm Beach, Florida, were also likely to contain classified information.2 On May 11, 2022, Plaintiff’s counsel was served with a grand-jury subpoena for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” DE.48-1:11.
In response, Plaintiff’s counsel and his custodian of records produced an envelope containing 37 documents bearing classification markings. MJ-DE.125:20-21.3 Plaintiff’s representatives did not assert any claim of privilege and did not suggest that any documents bearing classification markings had been declassified. To the contrary, the envelope had been wrapped in tape in a manner “consistent with an effort to handle the documents as if they were still classified.” MJ-DE.125:22. Some of the documents in the envelope bore classification markings at the highest levels, including additional compartmentalization. MJ-DE.125:21. Plaintiff’s counsel represented that the records came from a storage room at Mar-a-Lago; that all records removed from the White House had been placed in that storage room; and that no such records were in any other location at Mar-a-Lago. MJ-DE.125:20-22. Plaintiff’s custodian produced a written certification “on behalf of the Office of Donald J. Trump” that a “diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification.” DE.48-1:16.
The FBI then uncovered evidence that the response to the grand-jury subpoena was incomplete, that classified documents likely still remained at Mar-a-Lago, and that efforts may have been undertaken to obstruct the investigation. On August 5, 2022, the government applied to a magistrate judge in the Southern District of Florida for a search warrant, citing 18 U.S.C. § 793 (willful retention of national defense information), 18 U.S.C. § 2071 (concealment or removal of government records), and 18 U.S.C. § 1519 (obstruction of justice). MJ-DE.57:3. The government submitted a detailed affidavit demonstrating the bases for finding probable cause that evidence of those crimes would be found at Mar-a-Lago. MJ-DE.125. Magistrate Judge Reinhart found probable cause and authorized the government to seize “[a]ll physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, 1519,” including, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes . . . in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and container/boxes”; and “[a]ny government and/or Presidential Records created” during Plaintiff’s term of office. MJ-DE.125.
Magistrate Judge Reinhart also approved the government’s proposed filter protocols for handling any materials potentially subject to attorney-client privilege. MJDE. 125:31-32. The filter protocols provided that special agents assigned to a filter team would conduct the search of Plaintiff’s office and would “identify and segregate documents or data containing potentially attorney-client privileged information.” MJDE. 125:31. “If at any point the law-enforcement personnel assigned to the investigation . . . identif[ied] any data or documents that they consider may be potentially attorney-client privileged,” they were required to “cease the review” of the material and “refer the materials to the [filter team] for further review.” Id. Any document deemed to be “potentially attorney-client privileged” was barred from disclosure to the investigative team. Id. The filter procedures specified that a filter attorney could apply ex parte to the court for a determination of privilege, defer seeking court intervention, or disclose the document to the potential privilege holder to obtain the potential privilege holder’s position and submit any disputes to the court. MJDE. 125:31-32.
The government executed the search on August 8, 2022. The investigative team elected for the filter team agents to conduct the initial search of the storage room in addition to Plaintiff’s office, using the same filter protocols. DE.40:3. The search recovered roughly 13,000 documents totaling approximately 22,000 pages from the storage room and Plaintiff’s private office, including roughly 100 documents bearing classification markings, with some indicating the highest levels of classification and extremely limited distribution. See DE.116-1 (inventory); DE.48-1:18 (photograph).4 In some instances, even FBI counterintelligence personnel and DOJ attorneys required additional clearances to review the seized documents. DE.48:12-13.
B. Procedural History
1. Initiation of Plaintiff’s suit
On August 22, two weeks after the search, Plaintiff initiated a civil action in the Southern District of Florida, filing a pleading styled as a “Motion for Judicial Oversight and Additional Relief.” DE.1. Among other things, Plaintiff asked the district court to appoint a special master to adjudicate potential claims of executive and attorney-client privilege and to enjoin DOJ from further review and use of the seized records. Id. The cover sheet accompanying Plaintiff’s filing described his cause of action as a “[m]otion for appointment of Special Master and other relief related to anticipated motion under F. R. Crim. P. 41(g),” DE.1-1, but Plaintiff’s motion described no basis on which he was invoking the district court’s jurisdiction. After the district court directed Plaintiff to provide a supplemental filing elaborating on, inter alia, the asserted basis for the exercise of the court’s jurisdiction, DE.10, Plaintiff asserted that the court had jurisdiction pursuant to “the Court’s equitable and ancillary jurisdiction, as well as Federal Rule of Civil Procedure 53,” DE.28:1; see also DE.28:8.5 Plaintiff also described potential proceedings pursuant to Rule 41(g), which states that a “person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” See DE.28:4, DE.28:8-10.
On August 27, before receiving a response from the government, the district court issued an order setting out its “preliminary intent to appoint a special master.” DE.29. At the court’s direction, the investigative team and filter team filed notices on August 30 explaining the status of their respective reviews of the seized materials, along with detailed lists of the seized property in each team’s custody. DE.39; DE.40; see DE.29:2.6
The filter team explained that it undertook the initial search of Plaintiff’s office and the storage room, taking “a broad view of potentially privileged information, to include any documents to, from, or even referencing an attorney (regardless of whether the document appeared to capture communications to or from an attorney for the purpose of seeking legal advice and regardless of who the attorney represented),” and “treat[ing] any legal document as potentially privileged.” DE.40:3-4. The filter team also set forth the steps it proposed to resolve any potential attorney-client privilege disputes, noting that only a limited number of the materials it had segregated appeared to be even potentially privileged. DE.40:7-9. The filter team also described two instances in which members of the investigative team followed the filter protocol and ceased review of certain materials, providing them to the filter team because they fit the filter protocols’ broad prophylactic criteria for identifying materials that might be subject to attorney-client privilege. DE.40:5-7 & n.6.
2. The district court’s order and stay proceedings
a. On September 5, 2022, the district court granted Plaintiff’s motion in large part, ordering that a “special master shall be APPOINTED to review the seized property, manage assertions of privilege and make recommendations thereon, and evaluate claims for return of property.” DE.64:23. The district court further “ENJOINED” the government from “further review and use of any of the materials seized . . . for criminal investigative purposes pending resolution of the special master’s review.” Id. The court stated that the government “may continue to review and use the materials seized for purposes of intelligence classification and national security assessments.” DE.64:24.
The district court acknowledged that the exercise of equitable jurisdiction to restrain a criminal investigation is “reserved for ‘exceptional’ circumstances.” DE.64:8 (quoting Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974)).7 The court also found that Plaintiff had not shown that the court-authorized search was in “callous disregard” of Plaintiff’s constitutional rights. DE.64:9. But the court concluded that the other considerations set forth in Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975), favored the exercise of jurisdiction, principally because the seized materials included some of Plaintiff’s “personal documents.” DE.64:9-12. The court similarly found that Plaintiff had standing because he had made “a colorable showing of a right to possess at least some of the seized property,” namely, his personal effects and records potentially subject to personal attorney-client privilege. DE.64:13.
The district court found that “review of the seized property” was necessary to adjudicate Plaintiff’s claims for return of property and potential assertions of privilege. DE.64:14-19. As to attorney-client privilege, the court concluded that further review would ensure that the filter process approved by Magistrate Judge Reinhart had not overlooked privileged material. DE.64:15-16. The court did not resolve the government’s arguments that a former President cannot successfully assert executive privilege to prevent the Executive Branch from reviewing its own records and that any assertion of privilege would in any event be overcome here by the government’s demonstrated, specific need for evidence in criminal investigation. Instead, the court stated only that “even if any assertion of executive privilege by Plaintiff ultimately fails,” he should be allowed “to raise the privilege as an initial matter” during the special-master review. DE.64:17-18.
The court stated that an injunction against the government’s review and use of the seized records for criminal investigative purposes was appropriate “in natural conjunction with th[e] appointment [of the special master], and consistent with the value and sequence of special master procedures.” DE.64:1. The court determined that injunctive relief was consistent with Federal Rule of Civil Procedure 65, stating that Plaintiff had established “a likelihood of success on the merits of his challenge to the [filter team] and its protocol.” DE.64:20 (internal quotations and brackets omitted). The court further stated that Plaintiff had “sufficiently established irreparable injury” due to “the risk that the Government’s filter review process will not adequately safeguard Plaintiff’s privileged and personal materials.” DE.64:21. Finally, the court concluded that “the public and private interests at stake support a temporary enjoinment on the use of the seized materials for investigative purposes.” DE.64:22.
b. On September 8, the government filed a notice of appeal from the district court’s September 5 order, DE.68, and moved the district court for a partial stay of the order as it applied to records bearing classification markings, DE.69. In support of its motion, the government submitted a declaration from the Assistant Director of the FBI’s Counterintelligence Division explaining that the Intelligence Community’s national security review of these records was “inextricably linked” to the criminal investigation, and that the court’s injunction irreparably harmed the government’s ability to assess the full scope of the risk to national security posed by the improper storage of these records. DE.69-1:5.
On September 15, the district court denied the government’s motion for a partial stay. DE.89. The court declined to address the government’s argument that the classified records are not subject to any plausible claim for return or assertion of privilege. Instead, the court referred generally to “factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials.” DE.89:4. The court reiterated that the injunction in its September 5 order preventing the government from using those records for criminal investigative purposes was necessary “to reinforce the value of the Special Master.” DE.89:7.
c. On September 16, the government asked this Court for a partial stay of the district court’s September 5 order, again to the extent it applied to records bearing classification markings. On September 21, a three-judge panel granted the government’s motion and stayed the order “to the extent it enjoins the government’s use of the classified documents and requires the government to submit the classified documents to the special master for review.” Trump, 2022 WL 4366684, at *12.
The Court agreed with the government that “the district court likely erred in exercising its jurisdiction to enjoin the United States’s use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review.” Id. at *7. The Court explained that when a person seeks the return of seized property in a pre-indictment posture, the action is “governed by equitable principles” regardless of whether it is based on Federal Rule of Criminal Procedure 41(g) or the district court’s general equitable jurisdiction. Id. at *7 (quoting Richey, 515 F.2d at 1243). The Court then turned to “the ‘foremost consideration’ in determining whether a court should exercise its equitable jurisdiction,” which is whether the government “‘displayed a callous disregard for constitutional rights’ in seizing the items at issue.” Id. (quoting Richey, 515 F.2d at 1243-44, and United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977)) (alteration omitted). The Court emphasized the district court’s conclusion “that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights,” and that “[n]o party contests [this] finding.” Id. The Court held that “[t]he absence of this ‘indispensable’ factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.” Id. (quoting Chapman, 559 F.2d at 406) (alteration omitted).
Although it held that the first Richey factor was dispositive, the Court considered the remaining Richey factors “for the sake of completeness” as applied to the records bearing classification markings. Id. It concluded that “none of the Richey factors favor exercising equitable jurisdiction over this case.” Id. at *9.
3. The special master proceedings
While the government’s stay motions were pending, the special master review process commenced. On September 15, the district court appointed Senior District Judge Raymond Dearie, who had been proposed by Plaintiff, as special master, DE.91; see DE.83:2, and set forth the promised “exact details and mechanics of []his review process,” DE.64:23. Among other things, the court ordered the government to provide Plaintiff’s counsel with copies of all non-classified documents and to make the records bearing classification markings available for review not only by the special master, but also by Plaintiff’s counsel. DE.91:4. The court set a deadline of November 30, 2022, for the special master to complete his review and make recommendations to the district court. DE.91:5. The order also states that “[t]he parties may file objections to, or motions to adopt or modify, the Special Master’s scheduling plans, orders, reports, or recommendations.” DE.91:6. The district court has since sua sponte extended the November 30 deadline to December 16. DE.125:5.
4. Other appellate proceedings
On October 4, Plaintiff filed an application in the Supreme Court seeking to vacate in part this Court’s partial stay, asserting that this Court lacked jurisdiction to review the portion of the district court’s September 5 order requiring that the records bearing classified markings be submitted to the special master. On October 13, the Supreme Court denied the application. Trump v. United States, No. 22A283.
C. Standards of Review
This Court reviews a district court’s decision to exercise equitable jurisdiction over an ongoing criminal investigation for abuse of discretion. Richey, 515 F.2d at 1243. The Court likewise “review[s] for abuse of discretion a ruling on a motion for a preliminary injunction.” Vital Pharmaceuticals, Inc. v. Alfieri, 23 F.4th 1282, 1288 (11th Cir. 2022). A district court “necessarily abuse[s] its discretion if it base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); see also Vital Pharmaceuticals, 23 F.4th at 1288 (similar). The Court “review[s] de novo questions of [its own] jurisdiction.” Vital Pharmaceuticals, 23 F. 4th at 1288 (internal quotations omitted).
SUMMARY OF ARGUMENT
I. The district court erred by exercising equitable jurisdiction in this case. The exercise of such jurisdiction over a pre-indictment criminal investigation is limited to exceptional cases. Under this Court’s precedent, it requires, at a minimum, a showing that the government callously disregarded Plaintiff’s constitutional rights. Nothing like this was shown in this case, as the district court acknowledged.
The remaining equitable factors weigh against jurisdiction as well. Plaintiff has shown no need for the materials at issue. Nor has he shown any likelihood that he will be irreparably harmed by adhering to the ordinary process in which any challenges to the government’s use of evidence recovered in a search are raised and resolved— through standard motions practice in criminal proceedings in the event that charges are brought. This Court should therefore vacate the district court’s September 5 order in its entirety with instructions to dismiss the case.
II. Even if it properly exercised jurisdiction, the district court erred in enjoining the government from further review and use of the seized records pending a special- master review of Plaintiff’s claims of executive and attorney-client privilege. Executive privilege exists “for the benefit of Republic,” not any President as an individual, and Plaintiff cannot successfully invoke the privilege to prevent a review of Executive Branch documents by “the very Executive Branch in whose name the privilege is invoked.” Nixon v. GSA, 433 U.S. at 447-49. Even if Plaintiff could assert such a claim, it would be overcome here by the government’s “demonstrated, specific need” for evidence in a criminal investigation. United States v. Nixon, 418 U.S. at 713. The government’s need for the records bearing classification markings is especially compelling because those records are the very object of the government’s investigation of potential violations of 18 U.S.C. § 793.
Nor was an injunction necessary to protect Plaintiff’s potential claims of attorney-client privilege. The government’s filter team had already segregated any records potentially covered by the privilege, and its filter procedures barred disclosure of those records to the investigative team unless or until either Plaintiff declined to assert attorney-client privilege or the court adjudicated any privilege disputes.
None of the other factors governing the issuance of a preliminary injunction supported the extraordinary relief granted by the district court. Plaintiff failed to demonstrate that he would suffer irreparable harm absent an injunction, and the injunction overwhelmingly harms the government and the public interest. Lastly, none of the factual disputes suggested by Plaintiff supports any entitlement to injunctive relief. His suggestion that he could have declassified the records bearing classification markings is unsubstantiated and irrelevant here, and his suggestion that he could have designated government records as his “personal” records under the PRA would only undermine any claim of executive privilege.
III. For those reasons, both the injunction and the special-master review ordered by the district court were unwarranted and should be reversed. This Court has jurisdiction to address the special-master review for at least three independent reasons. First, as the Court concluded in granting a partial stay, the Court has pendent jurisdiction to review the special-master portion of the order below because it is “inextricably intertwined” with the concededly appealable injunction. Trump, 2022 WL 4366684, at *6 n.3. Second, 28 U.S.C. § 1292(a)(1) provides for interlocutory review of district court “orders” granting injunctions. Appellate jurisdiction thus lies over the entire order granting an injunction, as the Supreme Court has held in interpreting other statutes granting jurisdiction to review particular types of “orders.” Third, the collateral order doctrine provides an independent basis for appellate jurisdiction over orders requiring disclosure of classified information.