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Click to enlarge image. Mar-a-Lago Documents Image from 9:22-cv-81294-AMC Document 48 Entered on FLSD Docket 08/30/2022, p. 54 https://www.documentcloud.org/documents/22272819-trump-v-us-govt-response-mar-a-lago-warrant-48-8-30-2022
Exhibit 2A looks like 9 May 2018. Another seems to be 26 August 2019. See timeline here:
https://en.wikipedia.org/wiki/Timeline_of_the_Donald_Trump_presidency_(2018_Q2)#Week_68_2
https://en.wikipedia.org/wiki/Timeline_of_the_Donald_Trump_presidency_(2019_Q3)#Week_137

“Case 9:22-cv-81294-AMC Document 48 Entered on FLSD Docket 08/30/2022 Pages 1-2; 10; 26-28; 54 of 54 page filing. Entire document here: https://www.documentcloud.org/documents/22272819-trump-v-us-govt-response-mar-a-lago-warrant-48-8-30-2022
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION
CASE NO. 22-CV-81294-CANNON
DONALD J. TRUMP,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant. ________________________________/
UNITED STATES’ RESPONSE TO MOTION FOR JUDICIAL OVERSIGHT AND ADDITIONAL RELIEF

On August 22, 2022, fourteen days after the Department of Justice executed a search warrant at the premises located at 1100 S. Ocean Blvd., Palm Beach, Florida 33480 (hereinafter, the “Premises”), a property of former President Donald J. Trump (“Plaintiff” or “the former President”), Plaintiff filed a “Motion for Judicial Oversight and Additional Relief.” Docket Entry (“D.E.”) 1. In his motion, Plaintiff requested, among other things, that the Court appoint a special master and that the government return to Plaintiff certain property. See id. The following day, this Court ordered Plaintiff to file a supplement to his motion addressing certain questions. D.E. 10. On August 26, Plaintiff filed such a supplement, D.E. 28, and on August 27, the Court entered a preliminary order on Plaintiff’s motion, D.E. 29. In compliance with this Order, the government hereby files its public Response to Plaintiff’s Motion and Supplement, including Plaintiff’s request for the appointment of a special master. See id.

The legal issues presented, and the relief requested in the filings, are narrow, notwithstanding the wide-ranging meritless accusations leveled against the government in the motion. See D.E. 1; D.E. 28. Plaintiff’s filings present three issues: whether Plaintiff is currently entitled to the return of any property, to injunctive relief, and to the appointment of a special master.1 Not only does Plaintiff lack standing to raise these claims at this juncture, but even if his claims were properly raised, Plaintiff would not be entitled to the relief he seeks….” (p. 1-2)

“G. After Further Investigation Indicated that the Response to the Subpoena Was Incomplete, that Obstructive Conduct Occurred in Connection with the Response to the Subpoena, and that Classified Information Remained at the Premises, DOJ Obtained a Court-Authorized Search Warrant

Through further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11 grand jury subpoena was incomplete and that classified documents remained at the Premises, notwithstanding the sworn certification made to the government on June 3. In particular, the government developed evidence that a search limited to the Storage Room would not have uncovered all the classified documents at the Premises. The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation. See also MJ Docket D.E. 80 at 8 (“As the Government aptly noted at the hearing, these concerns are not hypothetical in this case. One of the statutes for which I found probable cause was 18 U.S.C. § 1519, which prohibits obstructing an investigation.”). This included evidence indicating that boxes formerly in the Storage Room were not returned prior to counsel’s review.” (p. 10)

“Even if a former President could in some circumstances assert executive privilege against the Executive Branch, no such assertion would be valid here.

In any event, even if there could be some extraordinary circumstance in which a former President could validly assert executive privilege against the Executive Branch itself, this case plainly would not qualify. The Executive Branch is reviewing the records at issue in furtherance of two core executive functions: investigating the potential unlawful handling of the records, including highly classified records, and assessing the resulting risks to national security. Access to the records is essential to the performance of those functions. And those vital Executive Branch interests far outweigh any burden on the institutional interests the privilege serves to protect—particularly where, as here, the former President has not even attempted to establish any particularized harm from the review of specific records.

In United States v. Nixon, the Supreme Court held that the need for evidence in a criminal trial outweighed even a sitting President’s assertion of executive privilege over presidential communications. The Court explained that, although the “[t]he interest in preserving confidentiality is weighty indeed and entitled to great respect,” 418 U.S. at 712, assertions of the privilege must also “be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer,” id. at 708-709 (internal quotations omitted). Ultimately, the Court concluded that “[t]he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Id. at 713.

Similar logic applies here. The records at issue were seized pursuant to a search warrant reflecting a judicial finding of probable cause to believe that they constitute evidence of violations of statutes specifically governing the handling of government records in general and national defense information in particular. See supra at 11-12 (citing 18 U.S.C. §§ 793 and 2071, as well as 18 U.S.C. § 1519). The Executive Branch has a “demonstrated, specific need” for the records at issue, Nixon, 418 U.S. at 713, because the records—and particularly any records marked as classified—are central to the investigation. Indeed, they are the very subject of the relevant statutes. And, even more so than in United States v. Nixon, there is little risk that the possibility of review in the highly unusual circumstances presented here would materially chill communications by future presidential advisers. See 418 U.S. at 712 (presidential advisors would not likely “be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution”). To the contrary, the Executive Branch’s efforts here are designed to ensure the confidentiality and proper treatment of sensitive presidential records that were improperly stored—a process that should enhance, rather than undermine, future presidential communications.15

The Executive Branch’s review here also serves another compelling interest that was not at issue in Nixon: The records at issue include sensitive and highly classified documents.

As the government has explained, the Intelligence Community, under the supervision of the Director of National Intelligence, is conducting a classification review of those documents and an assessment of the potential risk to national security that could result from their disclosure. D.E. 31 at 2-3. That additional vital purpose provides yet further reason to conclude that the Executive Branch’s interest in securing and reviewing the materials at issue here outweighs any limited burden on the confidentiality of presidential communications—and thus that the privilege would be overcome even if it were validly asserted. This Court should be particularly reluctant to order disclosure of highly classified materials to a special master absent an especially strong showing that such a step is necessary. Cf. United States v. Reynolds, 345 U.S. 1, 10-11 (1952) (courts should be cautious before requiring judicial review, even ex parte and in camera, of documents whose disclosure would jeopardize national security.

15 Of course, as DOJ and other Executive Branch personnel conduct their review of the seized materials, they will continue to be “sensitive to executive concerns” regarding confidentiality. Nixon v. GSA, 433 U.S. at 452.

Case 9:22-cv-81294-AMC Document 48 Entered on FLSD Docket 08/30/2022“ Pages 26-28 (bottom of page 26 and one word on page 29). 54 page filing. Read-download the entire document here: https://s3.documentcloud.org/documents/22272819/trump-v-us-govt-response-mar-a-lago-warrant-48-8-30-2022.pdf

“DOJ filing on Trump raid ‘special master’ request: Read the document
Trump requested ‘special master’ to look over documents seized from Mar-a-Lago” Published August 31, 2022 6:56am EDT https://www.foxnews.com/politics/doj-filing-trump-raid-special-master-request-read-document

https://www.forbes.com/sites/alisondurkee/2022/08/31/trump-and-his-team-likely-concealed-classified-documents-doj-filing-alleges/

NOFORN: “Not Releasable to Foreign Nationals” https://csrc.nist.gov/glossary/term/not_releasable_to_foreign_nationals

Markings: https://www.dni.gov/files/documents/FOIA/Public_CAPCO_Register%20and%20Manual%20v5.1.pdf

“NOFORN https://www.navsup.navy.mil/Viper-Home/NOFORN/
NOFORN is defined as information and/or hardware concerning the design, arrangement, development, manufacturing, testing, operation, administration, training, maintenance, and repair of the propulsion plants of Naval Nuclear Powered Ships, including the associated shipboard and shore-based nuclear support facilities. When NOFORN applies, appropriate safeguards must be proposed by the contractor, and approved by the Contracting Officer for Security for the safeguarding from actual, potential, or inadvertent release by the contractor, or any subcontractor, of any NNPI (NOFORN) in any form, classified or unclassified. Such safeguards shall ensure that only governmental and contractor parties, including subcontractors that have an established need-to-know, have access in order to perform work under a contract, and then only under conditions which assure that the information is properly protected. Access by foreign nationals or immigrant aliens is not permitted. A foreign national or immigrant alien is defined as a person not a United States citizen or a United States national. United States citizens representing a foreign government, foreign private interests or other foreign nationals, are considered to be foreign nationals for industrial security purposes and the purpose of this restriction. In addition, any and all issue or release of such information beyond such necessary parties, whether or not ordered through an administrative or judicial tribunal, shall be brought to the attention of the Contracting Officer for Security.” https://www.navsup.navy.mil/Viper-Home/NOFORN/