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 UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF FLORIDA 

FORT PIERCE DIVISION 

CASE NO. 22-81294-CIV-CANNON 

DONALD J. TRUMP, 

 

 Plaintiffs, FORT PIERCE, FLORIDA 

 vs. 

 SEPTEMBER 1, 2022 

UNITED STATES OF AMERICA, 

 PAGES 1 - 70 

 Defendants. 

_________________________________/ 

TRANSCRIPT OF MOTION TO APPOINT SPECIAL MASTER HEARING 

BEFORE THE HONORABLE AILEEN M. CANNON 

UNITED STATES DISTRICT JUDGE 

APPEARANCES:

FOR THE PLAINTIFF: CHRISTOPHER KISE, ESQ. 

 Chris Kise & Associates 

 JAMES TRUSTY, ESQ. 

 IFRAH, PLLC 

 EVAN CORCORAN, ESQ. 

 Silverman, Thompson, Slutkin 

 & White, LLC 

 LINDSEY HALLIGAN, ESQ. 

 

FOR THE DEFENDANT: JAY BRATT, ESQ. 

 TONY GONZALEZ, ESQ. 

 JULIE EDELSTEIN, ESQ. 

 SOPHIA BRILL, ESQ. 

 TONY LA COSTA, ESQ. 

 BENJAMIN HAWK, ESQ. 

 U.S. Department of Justice 

REPORTED BY: DIANE M. MILLER, RMR, CRR, CRC 

 Official Court Reporter 

 diane_miller@flsd.uscourts.gov 

Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 1 of 70
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P-R-O-C-E-E-D-I-N-G-S

THE COURTROOM DEPUTY: Calling case number

22-CV-81294, Donald J. Trump versus United States of America.

Counsel, please state your appearances beginning with

the plaintiff.

MR. KISE: Good morning, Your Honor -- good

afternoon, Your Honor; Christopher Kise on behalf of 

President Trump.

MR. TRUSTY: Good afternoon; Jim Trusty on behalf of

President Trump.

MR. CORCORAN: Good morning; Evan Corcoran on behalf

of President Trump.

MS. HALLIGAN: Good afternoon; Lindsey Halligan on

behalf of President Trump.

THE COURT: Good afternoon.

MR. BRATT: Good afternoon; Jay Bratt on behalf of

the United States.

MR. GONZALEZ: Good afternoon, Your Honor; Tony

Gonzalez on behalf of the United States.

MS. EDELSTEIN: Good afternoon, Your Honor; Julie

Edelstein on behalf of the United States.

MS. BRILL: Good afternoon, Your Honor; Sophia Brill

on behalf of United States.

THE COURT: Good afternoon, everybody. You may be

seated. Masks are optional.

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 2 of 70
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Before we proceed, I want to go over an important

ground rule, and that is, of course, the prohibition on

recording this proceeding both in audio and video. That

requirement stems from local Rule 77.1.

I also hereby order that no one, including members of

the media, should be using any form of social media to transmit

any information live during this proceeding, and that includes

directing anybody outside of this courtroom to do that for you.

So pursuant to the Court's administrative order, appropriate

action will be taken in the event that anyone is not in

compliance; and the Court, of course, is monitoring that so I

trust everybody will comply.

We are here, of course, to hear argument on the

plaintiff's motion for judicial oversight and additional

relief. I have reviewed that motion along with the full

record, including the government's response, the plaintiff's

reply, and the additional submissions that have been brought

before the Court. As a matter of housekeeping and pursuant to

the government's representation that it does not oppose the

release of the more detailed inventory to Plaintiff, that

document has been made available to Plaintiff prior to this

hearing.

Who will be leading the argument for the government?

MR. BRATT: Your Honor, I will be going first, though

I am splitting the argument with Ms. Edelstein.

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THE COURT: Okay. Well, then, let me just inquire of

you, sir. Do you have any objection to unsealing that more

detailed inventory?

MR. BRATT: No, Your Honor.

THE COURT: Okay.

Any objection from Plaintiff's counsel to unsealing

the inventory alone?

MR. KISE: No, Your Honor.

THE COURT: Okay. Then by separate order following

this hearing that document will be unsealed.

There also was filed a status report, one for the

case review team and one for the filter team.

Mr. Bratt, do you have any objection to turning over

to Plaintiff the status report for the investigation team? My

review of it is that it does not contain any substantive

information that is different from what has already been

publicly filed.

MR. BRATT: Yes, that is correct, Your Honor. We

have no objection.

THE COURT: All right. I'm going to ask my clerk to

please make that document available to Mr. Kise and his team.

It is docket entry 39.

Mr. Kise, any objection to unsealing that document?

MR. KISE: Just one moment, please, Your Honor.

THE COURT: Yes.

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MR. KISE: No objection, Your Honor. Thank you.

THE COURT: All right. Well, then, that document,

which is the investigation team status report, docket entry 39,

will be unsealed by separate order following this hearing.

So the final issue then is the status report filed by

the filter review team, and I'm referring only to the status

report not to the exhibits that were accompanying that status

report.

Mr. Bratt or anybody from the government, I would

like to know your position on making that available to

Plaintiff's counsel.

MR. BRATT: So, Your Honor, we have the two filter

attorneys present here. We have not seen it; and, certainly,

our main concern would be that there was nothing in there that

would then get out and taint members of the investigative side.

So I would defer to them as to whether the whole document can

be unsealed and provided to Defense or whether only a portion.

I'm sort of speaking blindly about it.

THE COURT: All right. I'll ask that whoever is

representing the filter team come to counsel table.

MR. LACOSTA: Good afternoon, Your Honor; Tony

Lacosta on behalf of the United States.

THE COURT: Good afternoon.

MR. LACOSTA: Request permission, may I sit here?

THE COURT: Yes, please.

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MR. BENJAMIN: Benjamin Hawk on behalf of the United

States.

THE COURT: Good afternoon.

My question, Mr. Lacosta, is directed only at the

status report not exhibits A or B. What is your position with

respect to making that available to Plaintiff's counsel?

MR. LACOSTA: Your Honor, we have no objection with

the pleading itself being made to Plaintiff's counsel, both the

pleading, exhibit A and exhibit B, but we would ask that it

remain under seal.

THE COURT: Okay. So for now, please, I'll ask my

team to make those documents available to Plaintiff's counsel.

And because those are lengthier, I'm going to take a 15-minute

break for Plaintiff's counsel to review them.

The Court is in a brief recess.

THE COURTROOM DEPUTY: All rise.

(Recess was had at 1:11 p.m.; and the proceedings

Resumed at 1:26 p.m.)

THE COURT: You may be seated.

All right. Has Plaintiff's counsel had enough time

to review that status report?

MR. KISE: We have, Your Honor.

THE COURT: Okay. What is your position on the

unsealing of the report itself, minus the exhibits?

MR. KISE: Your Honor, respectfully, we think that

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 6 of 70
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both the report itself and the exhibits should remain under

seal at this time. The report itself does make some

substantive references to privileged material; and, in an

abundance of caution, we want to make sure that we don't get

into a situation where there is a waiver claim of some kind.

So, respectfully, we would ask the Court to keep it under seal.

There may come a time, after we understand a little bit more,

where that position could change; but certainly for now, Your

Honor, we don't want to have a waiver situation.

THE COURT: Okay. Well, seeing as it is a joint

request at this point to continue the seal as to the filter

review team status report and associated exhibits, that

document will remain under seal, and the parties should be

careful to adhere to that in their presentation today.

With that, let's commence the substantive portion of

this hearing. What I had in mind was to give each side

approximately ten minutes to present any overview argument; and

then, of course, the Court will have questions as we go along.

But if either said has a different proposal, I am happy to hear

any suggestions.

MR. KISE: No, Your Honor, that's fine.

THE COURT: Mr. Bratt?

MR. BRATT: That is fine, Your Honor.

THE COURT: Okay. Well, then, let's commence with

Plaintiff's counsel, since it is your motion.

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 7 of 70
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MR. KISE: Thank you, Judge; I'll be brief. Again,

Christopher Kise on behalf of President Trump. As I mentioned,

with me is Mr. Jim Trusty who will handle the balance of the

argument; in the main, Evan Corcoran and Lindsey Halligan.

Your Honor, just briefly, you are in a challenging

but yet, respectfully, a unique position to restore order, to

help restore public confidence in the impartial administration

of justice. You know, the temperature is very high on both

sides here, very high. There is a significant lack of trust

between the parties. And I'm not speaking out of turn and I'm

not being accusatory, I just think there is. I think it is

evident from what you see out in the public eye.

There is a real or perceived lack of transparency.

Again, not being critical or commenting on that, but just there

is. There is this perception that this isn't going the right

way. The media is here beating the door down. And from the

media reports, there is a real or perceived lack of -- a public

lack of faith in the integrity of the administration of

justice. This is an unprecedented situation. We need,

respectfully, to lower the temperature on both sides. We need

to -- we need to take a deep breath and place this into

perspective.

What we are talking about here, in the main, are

Presidential records in the hands of the 45th President of the

United States at a location that was used frequently, during

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 8 of 70
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his term as President, to conduct official business.

This is not a case about some Department of Defense

staffer stuffing military secrets into a paper bag and sneaking

out into the middle of the night. This is, as I say,

Presidential records in the hands of 45th President of the

United States.

The inventory, in fact, that was just provided and

unsealed demonstrates that, the first inventory. It is what

you would expect, when you look at it. It is what you would

expect if you looked through a bunch of boxes that were moved

in a hurry from a residence or an office. It contains all

sorts of things. And in there are, again, Presidential records

in the hands of 45th President of the United States.

The appointment of a special master here is going to

help identify the real issues. It is going to help place those

issues in the proper context. It is going to give the parties

and the Court an orderly path towards resolution of those

issues. And perhaps most importantly, Your Honor, I believe,

respectfully, it is going to give the American people a greater

confidence in the integrity of this process.

Mr. Trusty is going to handle the balance of the

argument. Thank you.

THE COURT: Thank you.

MR. TRUSTY: Your Honor, good afternoon; pleasure to

meet you. Thank you for your expeditious treatment of this

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 9 of 70
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matter and setting a schedule that allowed us to move quickly

in the interest of justice. And again, it is an honor to

appear in front of you.

Your Honor, I want to just make a few comments based

on really the developments of the last few days and

particularly talking about the pleading from the government.

And really what we can read into that, I think fairly, as a

matter of inference, the government's strategy at this point,

when it comes to the very limited notion of appointing a

special master is simply to ask the Court, "Move on, we are in

control, we know what we are doing, leave us alone."

It is an extraordinary moment. It is one thing to

have that attitude towards counsel for the President and say,

"Sorry, guys, we are not going to talk" -- and I'll come back

to that in a moment, but the idea of pushing off this really

modest idea of appointing a special master is extraordinary.

And some of the things we see in their pleading really

underscores the incredibly, extraordinary, historic -- and I

don't mean that in a good way -- nature of the Government's

conduct.

The first is that in the pleading from two days ago,

we now have this allegation that if Your Honor has the temerity

to appoint a special master, from their perspective, that it

will interfere with this newly facilitated office -- ODNI

investigation into the classification of materials, literally

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 10 of 70
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telling the Court that "you can't possibly allow for a special

master to get involved because it is going to interfere with

what we are doing; again, leave us alone."

We had this phenomenal argument about standing which

would absolutely turn the Fourth Amendment on it's head in

terms of established case law for many years and certainly the

idea of fruits of a poisonous tree. The Government is now

trying to suggest to the Court that as long as they find

something they deem illegal, that there is no recourse for an

unconstitutional intrusion; that the finding of some sort of

contraband, from their perspective, allows them to go scot-free

from any assessment of Fourth Amendment law. That's an amazing

concept for them to put in writing in this brief. I think it

speaks volumes as to this ends justify the means mentality that

is being employed. And so the standing argument which was a

shocker remains a shocker.

And what they have done in their briefing is they

have essentially had a narrow inquiry from the Court saying,

"Please give me your position on the idea of appointing a

special master." 

And they said, "Well, we want to go ahead and run the

table and tell the Court, leave us alone, we know what we are

doing, and this is for all time; there is no such thing as Rule

41, no such thing as standing, no such thing as castle

doctrine; you know, when your home is invaded by armed agents,

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you have nothing to say about it."

And what is extraordinary is not just that this is

involving a President of the United States and his residence, I

mean, it really makes you step back and think, what if it is

just some guy that is faced with an attorney general or maybe a

local equivalent, a state's attorney, a U.S. attorney,

announcing publicly, I don't want to unseal the stuff I like

about this search warrant, I want to unseal the warrant to show

that it's really serious charges from our perspective, and I

want to unseal the inventory or at least this partial inventory

that they originally had and say, you know, look at the dirt we

found, it justifies everything we did.

To have -- I mean, I have been around prosecution and

criminal justice for 30-something years, longer than I want to

admit maybe, but to have any Executive Branch official publicly

announce, I'm ready to unseal these documents at the expense of

any defendant, much less like a marginalized defendant, any

defendant is an amazing moment. It is an extraordinary moment.

It calls out for some questioning of what the motivation is

here and whether or not we, as a criminal justice system,

should allow completely unfettered conduct to go unchecked,

unobserved, unmonitored.

Now, as it turns out, our client was perfectly happy

with the notion of transparency. He doesn't just say it in his

speeches, he actually means it and says, "If they want to let

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that stuff loose, let it go loose; how about the affidavit

too," and that will be the subject of another conversation, at

some point, about the affidavit. But you have this selective

leaking and disclosing on behalf of the Government.

You even have what happened two days ago, the

insertion in a motion about the special master of a perfectly

staged photograph of classified covers on documents. I mean,

how that was supposed to help the Court decide the issue of

special master is beyond me. It was obviously a press release

within their motions response. And this is the type of unusual

conduct we are seeing left and right in this case that cries

out for some modest measure of government -- I'm sorry, of

judicial intervention.

I want to spend a minute on the filter team. It is

great to actually see them.

Now, in a normal situation with a filter team, yes,

there is going to be communications back and forth with the

Court. We are not saying there is anything wrong with the

notion of a filter team filing reports with the Court. But

what normally happens in the practice of filter examinations is

the other side of the aisle gets a phone call, and it is

somebody that says, Hey, I'm Fred Smith, I'm from the U.S.

Attorney's Office or I'm from a different section of main

justice and I'm on the filter team; we are doing this search to

look for whatever -- in this case, they limited it to

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attorney-client and work product -- and then there is

communication and you get a sense of when are they going to be

done, are there documents that they want our opinion on.

Frankly, the beginning is not just the investigative team

saying, here is a list. They go to the attorneys and say, who

shall be we looking for that might implicate privilege. We

never had that courtesy.

So we have filter team that announces to the Court

through these pleadings of two days ago and now today that,

"Trust us, we have done everything; we are done, and we never

involved the other side for any bit of communication." And

again, I can tell the Court, that's just not how filter teams

normally work. There is some notice to the other side that,

hey, we have some documents we should talk about; we have some

documents to return; we have documents we want you to tell us

if you think they are privileged. We didn't have any of that.

And it is not a function of counsel sitting here and being

concerned on a courtesy level or personal feelings or ego, this

is just another sign of the extraordinary conduct that the

Government wants to engage in for this particular

investigation.

At the end of the day, what they are left with is

telling the Court, along with these new fangled theories about

standing, that it would be somehow wrong to have any level of

involvement now or in the future. And the reality is, if we

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step back and think about it, what is the harm that they are

worried about? What possibly could justify this kind of

vehement objection and recreation of Fourth Amendment law

because they don't want any bit of involvement? They don't

want a neutral respected, maybe mutually selected even third

party to take a look at the same documents and make sure they

got it right, or to look at the same documents and make

determinations, as we should be doing under the Presidential

Records Act and figure out whether these are personal or

Presidential records. They are creating a different rule for

this case than anything that we have ever seen.

So I know I'm running short on time, and I'll try to

cut it short and hopefully return when the Court has questions;

but, I would suggest to the Court that all we are talking about

today is a very modest step that the Court forecast as a

possibility with your recent order, which is the appointment a

special master. There will be work to do nonetheless.

THE COURT: To do what exactly?

MR. TRUSTY: Well, first thing which was solved today

which was to get an actual inventory. So we appreciate that

that was taken care of by the Court in unsealing that

inventory. The next logical step would be to allow us to

actually examine the documents and other items that were seized

in this search. And frankly, the way the communication has

been, we think we need involvement on some level, the judge or

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your designee, to make that happen in an expeditious fashion.

We also think the special master could be in a

position to address and should address not just attorney-client

and work product issues and resolve those or at least recommend

resolutions of those, but to deal with the overarching paradigm

here that actually matters that they are trying to criminalize

which is the judicially unenforceable Presidential Records Act.

In other words, the classifications for that are entirely about

Presidential or personal with no specific regard for

classification. And that's another division that could be

helpful in terms of guiding the litigation and hopefully arming

the Court with information over time, as we try to litigate

these matters.

THE COURT: Are you asserting any other privileges

beyond the attorney-client privilege?

MR. TRUSTY: Well, we are not conceding the fact of

classification, I should make that one hundred percent clear,

in terms of whether any of these items remain classified. We

would assert attorney-client and work product. Of course, we

are not privy to any individual document yet, so I can't give

you any sort of play by play. Beyond that, I suppose I don't

expect other privileges to kick in, but I don't --

THE COURT: So I just want to be clear, there were

some references in the papers to executive privilege, you know,

some resistence from the Government as to the assertion of

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that, so I do want to clarify exactly what privileges are being

asserted by the Plaintiff in this case, for the purposes of the

appointment potentially of a special master.

MR. TRUSTY: Absolutely. Thank you, Your Honor.

Certainly, our pleadings have covered that better than I just

did. 

Yes, executive privilege is in play, as well. The

problem that we have in terms of any specific assertion is that

we haven't had access to the actual materials. But I can tell

you without again, I think, burning anything from what we have

recently seen, some of the recent materials that we have just

received continue to alarm us about several different levels of

privilege. So yes, executive privilege is in play; yes, we

think that all of these classifications of the Presidential

Records Act and the notion of executive privilege are things

where a special master logically could wade in and help resolve

for this Court in an expeditious fashion, so we would welcome

that kind of assessment.

THE COURT: All right. I'll have more questions

later.

MR. TRUSTY: Thank you, Judge.

MR. KISE: Your Honor, may I? I just have one minor

thing. I didn't want to jump up, when Mr. Trusty was speaking.

But to answer your question about privileges that we are

asserting, I think that there is also an issue potentially

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under 44 U.S.C. 2204, which there are restrictions on access to

Presidential records. I'm not sure how that fully applies here

because we don't have, you know, a full understanding of the

documents; but, that may become an issue and I just want to

make sure that we note that in response to your question. 

Thank you.

THE COURT: All right, thank you.

Mr. Bratt.

MR. BRATT: Yes, thank you, Your Honor.

One thing that would, I think, undermine most of the

confidence in the administration of justice is that the Court

doesn't follow the standards and laws for where we are

procedurally in this case. And where we are procedurally is we

have a pre-indictment challenge to a search warrant and a

search; and, at this procedural stage, the rights of the person

who may be aggrieved are very limited. And under -- and there

really are two bases for the Court's jurisdiction and

particularly with respect to asserting jurisdiction over the

classified records and other Presidential records.

Now, Ms. Edelstein will talk about executive

privilege, and she will also talk about the propriety of

special masters, and she will handle the issue of

attorney-client privilege because that is a bit different from

the classified and other Presidential records.

But with respect to the classified and other

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Presidential records, there are only two bases that this Court

has jurisdiction at this pre-indictment stage. One is Rule

41(g), and we believe this is a truly 41(g) motion; or second,

the Court can exercise a second or anomalous jurisdiction. To

do that, that then triggers certain inquires the Court must

make, and it also triggers certain burdens on them to establish

that they satisfy those standards.

The civil cover sheet to this matter references 

Rule 41(g). There are frequent references throughout

Plaintiff's briefs to Rule 41(g), and we believe that what they

have really done is brought a Rule 41(g) motion. And if the

Court interprets and reads and applies Rule 41(g) strictly,

they cannot get a special master or the relief that they seek,

and that's because the key factor that must exist for a party

to bring a Rule 41(g) motion is that the party has a possessory

interest in the property at issue.

And let me describe what the former President has as

Presidential records that the 45th President took. He is no

longer the President; and because he is no longer the

President, he did not have the right to take those documents.

He was unlawfully in possession of them; and because he has no

possessory interest in those records, that ends the analysis

under Rule 41(g). If, however, the Court looks to assert

jurisdiction --

THE COURT: Doesn't that put the cart before the

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horse though? I mean, you are essentially asking, for purposes

of the Fourth Amendment, to say there is no reasonable

expectation of privacy in the context of the search involving

premises that are unquestioningly controlled by the former

President. So as a matter of the Fourth Amendment, if that's

the sort of standing argument you are trying to bring, I'm

unclear why now we would have to determine the proper ownership

of those records.

MR. BRATT: Because, Your Honor -- well, two

responses. One, the reasonable expectation of privacy has been

overcome by the issuance of a warrant supported by probable

cause; but, second, the sort of standing that Your Honor is

talking about and that Mr. Trusty was referencing, that's the

standing that you have after there have been charges and you

are seeking to suppress the fruits of search. The sort of

standing or jurisdiction that you have to have right now

pre-indictment as set forth in Rule 41(g), as set forth in the

Howell case, and as I'm about to talk with respect to the

equity jurisdiction Bennett case that Judge Rosenbaum decided

when she was a judge here, that is very limited. And whether

you call it "standing" or "jurisdiction," they do not have it

here. And in order to get the jurisdiction or standing under

Rule 41(g), that is a key requirement. In fact, it is the key

requirement, that you have a possessory interest in a property.

If, at a later point, the Fourth Amendment -- potential Fourth

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Amendment violations need to be vindicated, that is done

through a motion on suppression. It is not done through a 

Rule 41(g) motion pre-indictment.

THE COURT: You don't dispute one can bring a civil

action in equity for the return of property pre-indictment

assuming the equitable factors and consideration to counsel in

favor of such an action.

MR. BRATT: I do agree with that; but under the

Richey factors and to go through them -- and actually, I was

going to start with the first, callus disregard for Plaintiff's

constitutional rights, I will get back to that. But the second

Richey factor is that Plaintiff must have an interest in and

need for the property, and this plaintiff does not have an

interest in the classified and other Presidential records. So

under Richey, that, in and of itself, defeats or should point

the Court to decline to exercise its equitable jurisdiction.

On the topic of callus disregard for Plaintiff's

constitutional rights, there was a warrant here. Judge

Reinhart both at the hearing two weeks ago and in his order

reiterated that he found there was probable cause, valid

probable cause for the warrant. There was a search that was

done, and we believe that what was seized was limited to what

was within the scope of the warrant. They have put forth no

evidence that there was any disregard of the -- of the former

President's rights.

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The third factor under Richey is irreparable injury;

and again, we don't know what the injury is with respect to the

classified and other Presidential records. They aren't his,

especially the classified weren't being properly stored. Do

they -- are they potentially incriminating? Yes, they are

potentially are, but that isn't the type of irreparable injury

that the courts look at in equity.

And then in addition, the last factor is, well, there

is no adequate remedy at law, and that's what we have been

discussing. There is an adequate remedy of law later through a

suppression motion.

There are also, you know, three I think very

important, overarching factors that the courts emphasize when a

judge in your position is being asked to exercise equity

jurisdiction for return of property. One is that the exercise

of that jurisdiction must be with caution and restraint, and it

must be exercised only to prevent a manifest injustice; and the

third, any time a party comes to equity, the party must have

clean hands. And here, the former President being in unlawful

possession of classified and other Presidential records, that

is a text book example of unclean hands.

I will rest on what we say in our pleadings with

respect to the injunction and to personal items, but I will now

turn it over to Ms. Edelstein to address the other issues.

THE COURT: All right.

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MS. EDELSTEIN: Good afternoon, again, Your Honor.

I'm going to address the issues specific to the

appointment of a special master. As a starting point, under

the Federal Rules of Civil Procedure, special masters are not

generally favored. On the other hand, the rules assume that in

most circumstances, the court, whether it be the district court

or the magistrate judge, is equipped to handle such issues.

Having been apprized of the status of both the

investigative review and the filter team review in this case, I

think it is especially clear why the appointment of a special

master would not be appropriate and only serve to cause delay

to both parties.

I want to turn to both the issues surrounding

executive privilege and also the attorney-client privilege.

Plaintiff in this suit has said that the request for a special

master would be modest. On the executive privilege issues, it

would not be modest, it would be unprecedented.

THE COURT: Why is that?

MS. EDELSTEIN: There is no role for a special master

to play in executive privilege, and that is why it has not been

done in the past.

THE COURT: Isn't that also because there has never

been a seizure of this magnitude of a former president?

MS. EDELSTEIN: On the executive privilege issues, I

think it is very telling that in the three briefs that

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Plaintiff has filed and in addressing the Court, they have

never grappled with the case of Nixon versus GSA. Even if they

could assert that claim of executive privilege, which we don't

concede, their argument that it could be successfully asserted

is foreclosed by that case.

THE COURT: I don't know if that's right. It seems

to me like you are potentially overreading Nixon; and to say

now that there is absolutely no room for a former executive to

raise a claim of executive privilege, at least for some period

of time, is not entirely decided in the law, so I'm not sure it

is as cut as dry as you suggest.

MS. EDELSTEIN: So even if they could raise it which

we don't concede, under these circumstances, there is no way

that such a claim could succeed.

And let me back up a little bit because during the

Plaintiff's argument, they characterized this case as "just a

former president in possession of his records." The first

issue with that is they are no longer his records. We need to

look at the applicable law here, the PRA; and despite a lot of

allegations made by the Plaintiff, we really need to focus in

on the legal provisions at issue. The PRA makes it very clear,

in 2202, that these records belong to the United States.

Presidential records belong to the United States. Importantly,

in 2203(g)(1), upon conclusion of the term of the President, it

is the archivist that assumes custody and control of the

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Presidential records. The records at issue were not his, at

the time that the search warrant was authorized and the search

occurred, and he does not have a property interest in those

records anymore. And in terms of just it being a former

president in possession of his records, some of those records

included the most highly classified information of the United

States. There are very specific provisions in the Code of

Federal Regulations that govern the storage of that property,

and it is undisputed that at least after the end of the former

President's term, there was no place at that property that was

authorized for the storage of those records.

We also have the issue here that the former President

blatantly disregarded the provisions of the PRA and is now

trying to rely on it to accomplish what he seeks here. But not

having turned over the records to NARA, he can't do that. And

the procedure set out in the PRA do not apply because the

records are not in NARA's possession as they should have been.

Notably, there is also a venue provision in the PRA

and should he be seeking relief under that statute, that suit

would have to be brought in the District of Columbia and not

here.

So getting back to the Nixon cases, first, he has not

made any assertion of executive privilege in this case and, in

fact, has taken a number of actions without making that

assertion. He ended up providing some boxes to NARA. There

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are materials produced pursuant up to a grand jury subpoena.

There have been multiple instances, and there has never been a

specific invocation of executive privilege.

THE COURT: As far as the chronology is concerned, at

least in one of the attachments supplied by the Government,

there was, I think, a request for more time to determine

whether to assert executive privilege, so I don't know exactly

if there was an assertion. But the papers, at least that I

have been presented with, seem to suggest they are taking that

position, that a special master is warranted not only for the

attorney-client privilege issues but also for the executive

privilege and potentially in addition to resolve categorization

disputes that arise between the parties, and I presume that

refers to the PRA.

MS. EDELSTEIN: So you are referring to what is

attachment B to the pleading that the Government filed the

other evening, and that is a May 10th letter from the

archivist; and in that letter, the archivist clearly explains

that the -- it's not a close call here because what the

Government was seeking to do was review Executive Branch

materials within the Executive Branch, and that's really the

key to Nixon versus GSA.

Also notably, that letter was provided on May 10th.

Purposefully, we waited a few days before beginning the FBI's

review of that material to give the Plaintiff the remedy he

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could have sought at that time, which was to bring a suit in

the District of Colombia to assert executive privilege over

those materials. He did not.

Why Nixon versus GSA is so important is that it makes

clear that the -- that under these circumstances, it would be

impossible for him to successfully assert the executive

privilege to keep the executive privilege from other parts of

the Executive Branch reviewing these materials. It describes

the intrusion as very limited, when the materials are staying

within the Executive Branch, and we have to look at the very

purpose of the presidential privilege.

THE COURT: Ultimately, what is the harm in the

appointment of a special master to sort through these issues

without creating undo delay, to do an orderly fashion receive

these materials, receive claims of privilege and go through it

giving both sides a full opportunity? I guess what I'm

wondering from the Government, you know, is what is your

articulation of harm other than just the general concern that

it would delay a criminal investigation?

MS. EDELSTEIN: First of all, those are very

legitimate concerns; and, at the outset, even if there was an

appropriate assertion of executive privilege, it is undisputed

that the executive privilege is a qualified privilege.

THE COURT: Certainly.

MS. EDELSTEIN: And there is a balancing test that

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applies. 

In terms of the Government's interest, there are

multiple very significant legitimate interests. One is the

criminal investigation, and under Nixon versus United States,

that is clearly recognized as a very significant interest, even

if the materials had to be provided outside of the Executive

Branch which here they don't which shows how limit the

intrusion is. It would be unprecedented for the executive to

be able to successfully assert privilege against the Executive

Branch.

And in addition to the criminal investigation which

is obviously a legitimate interest, as the Supreme Court has

recognized, there is also the ongoing damage assessment by the

intelligence community. This is not an effort that we just

undertook. In fact, in that same May 10th letter that I

referenced, there is an April communication to Plaintiff's

counsel that emphasizes that the materials had to be reviewed

by the FBI in part so that it could coordinate an assessment of

the damage that could have resulted from the improper storage

of these materials. And if a special master was appointed at

this point, that would -- and the Government was not able to

continue --

THE COURT: So would your position change, for

example, if the special master were permitted to proceed

without affecting the ODNI's ongoing review for intelligence

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purposes but pausing temporarily any use of the documents in

criminal investigation? So what I'm saying is no effect on the

DNI review, which is ongoing and has been asserted as necessary

for national security but then providing a temporary period of

time, like I said, for orderly review of the documents seized?

MS. EDELSTEIN: It would not change. There is no

role for a special master to play in terms of executive

privilege, given the posture that we are at --

THE COURT: So are you conceding that one would be

appropriate for attorney-client?

MS. EDELSTEIN: I'm not, I just haven't reached that

argument yet, I'm happy to turn to that. And in terms of the

attorney-client issues, I am not aware of the contents,

obviously, of the status update that was prepared and submitted

by the filter team. But my understanding is that the filter

team is already in a position to dispose of the materials in

accordance with the protocols that we laid out in the search

warrant, and it would cause delay to both parties if that

weren't allowed to proceed.

And again, looking at the cases and the law, it is

very telling that the cases that are cited by Plaintiff in

their brief, in cases where a special master has been appointed

for attorney-client issues, they invariably involve the search

of law firm or other law offices, and there is special

considerations especially when there could be other clients

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involved, matters where a U.S. attorney's office may be seizing

records in unrelated investigations, and that's simply not the

case here. There is one client, and he is not an attorney.

So in terms of the special master for attorney-client

privilege, that is just not necessary at this point. And as I

started with, these are the type of cases where we assume that

a district court or magistrate judge on a specially care given

the -- what I understand is a modest volume of materials that

don't present the thorny issues that are presented in law firm

search, we assume that is something that the district court,

the magistrate judge would be equipped to handle.

THE COURT: All right, thank you very much. 

I'll give the Government an additional opportunity;

but now, I would like to hear form Plaintiff's counsel with

focused argument on the Richey factors to the greatest extent

possible in terms of the equitable considerations.

MR. TRUSTY: Your Honor, I think the difficultly in

completely jumping through that hoop for the Court in terms of

the Richey factors is that we are still purposefully blinded

from large swaths of information. What we see from our side of

the aisle is a warrant that looks like a general warrant and

could be subject to challenge under Rule 41. 

What we also have concerns about is this affidavit

that was released in kind of more black than white form that

doesn't really tell us whether there were omissions or

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misstatements that were made to Judge Reinhart in support of

this warrant. So there is a --

THE COURT: Let me just ask you: What is the

irreparable harm that you are asserting? At this point, the

Court would be required to, if it did determine that the

exercise of equitable jurisdiction is appropriate going through

those considerations -- and admittedly, they are considerations

only. But nevertheless, what is the Plaintiff's assertion of

irreparable harm if the Court does not exercise equitable

jurisdiction?

MR. TRUSTY: Well, Your Honor, the irreparable harm,

frankly, is ongoing, and it's on two different levels I would

suggest. The first is that you have a criminalized

investigation of a dispute with NARA that historically is

unenforceable in terms of judicial enforcement. It is a

noncriminal scenario where they anticipate that a president, at

any time as a president or after, would have the highest level

of access to documents that are in his or her possession. So

we are in a situation where, literally, they have taken a -- we

have characterized it at times as "an overdue library book

scenario" where there is a dispute -- not even a dispute,

ongoing negotiations with NARA about archives that has suddenly

been transformed into a criminal investigation. So anything

that furthers that criminal investigation in terms of their

continued access to these documents, to their allegations that

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there was a need for an ODNI assessment, to the fact that they

have confirmed today an ongoing criminal investigation, they

should not have the benefit of this information to try to build

a criminal case when they were never entitled to walk through

the doors and seize any of these items.

So this whole idea of whether or not -- I'm heartened

to hear that they are starting to acknowledge, perhaps

reluctantly, that the Presidential Records Act applies, but

they need to realize the whole act applies. I mean, that act

anticipates that presidents, even when out of office, are going

to have highest level of access to their materials. It also

anticipates -- there is language in the act somewhere about

12-year classifications on behalf of the President which, by

definition, means you are talking about rights of an

ex-president, a former president to control the flow of

information back and forth with NARA. It is an exercitation --

it is a statute that demands cooperation but not judicial

enforcement. So there is this direct level of a criminal

investigation accessing documents that they are not entitled to

have ever seized in the first place.

There is also, I would submit, and this is may be a

little harder to characterize, but one that I think in the

world of equity makes sense, there is a broader concern here

for the institution of the presidency, that no matter who is

under the gun of a politicized Department of Justice, that

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equity cries out for looking at the combined actions of this

Department in trying to eliminate the Presidential Records Act

in favor of criminalizing it. This is something that, your

know, fair-minded citizens and I hope jurists, as well, would

recognize is a serious institutional threat. Now, can I

characterize the harm in some sort of precise way? No, but I

don't want to forget the institutional harm of taking this

radical approach that the Department is taking. So I think it

is literally kind of on a case building level that there is

prejudice, but there is, I think, broader historic concerns,

and again, belied by all of the little moments of conduct, the

challenges about standing, the inability to reach out during a

filter team, there is something here that should be looked at.

And frankly, I continue to be astounded by the fact that the

Department of Justice can't just accept that. They can't

accept even a little bit of judicial involvement in a historic

and outrageous and inequitable scenario.

THE COURT: Why couldn't you just presumably wait to

challenge these matters in a future proceeding, if one ever

materializes?

MR. TRUSTY: Right. Well, is it true that we could

have Franks hearing and a motion to suppress for a general

warrant some day? Sure. Obviously, the damage is done for any

citizen, at that point; that means they have been indicted.

The model that's being proposed to you on behalf of

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the Government is one that completely guts Rule 41. We have a

mechanism, not even just equitable principles in general or

court inherent supervisory authority, but we have a statutory

mechanism for pretrial challenges to warrants. It specifically

refers to the language of the Fourth Amendment, "unreasonable

searches and seizures." That's what we are talking about here.

The Government wants to ignore that. They want to say look

away, it doesn't apply; but, it applies to President Trump just

like it would anybody.

So Rule 41 is the ultimate mechanism we are talking

about to try to return property and essentially -- not directly

by way of a suppression, but essentially invalidate the conduct

of this Government. That could be based on the way they short

circuited the Presidential Records Act in their search warrant.

Of course, we would have to see the affidavit to be able to

fully brief that. It could be based on the general nature of

the warrant.

The Court will probably recognize -- I'm not asking

for an opinion -- that the warrant itself not only allows for

gathering papers around their classified materials seizure,

which again we even dispute whether it is classified or whether

they are entitled to seize it or whether it is in the right

paradigm, but boxes in the vicinity, documents in the vicinity.

I mean, this was a colonial time search where the agents had

discretion to take anything they want. And maybe they did, we

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are still trying to get through a legitimate inventory to

figure that out. But there are significant substantial

preliminary showings that this is a warrant that is suspect.

And I can just tell the Court that our intention is to explore

that, get the classifications through a special master and Your

Honor that we can get, in terms of what the universe of items

are, and pursue ideas like seeing the affidavit, maybe not for

the general public, but at least for counsel to properly

prepare for a Rule 41 and then litigating a Rule 41. This is

what the rule is all about. It doesn't matter whether it is a

president or guy on street corner in Baltimore, they have that

right to challenge this preliminarily.

THE COURT: And then why would you wait 14 days to

file the motion seeking -- I did read there were perhaps

informal discussions for the Government's consent to one, but I

would like to hear more about that issue in particular, so

please proceed.

MR. TRUSTY: Right. Your Honor, again, not to

alienate the Court on this issue, part of that I don't think I

can disclose. As with any kind of decision about the timing of

filing, the nature of filing, some of that is going to,

unfortunately from where I stand right now, fall into a

category that I'm not comfortable sharing in open court. But I

would also say more fundamentally, we were trying to have

communications with the U.S. Attorney's Office. We had

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multiple communications early. We asked them what their

position would be on a special master. We were hopeful that

there would be some transparency that carried through to really

let us assess what was seized, how it was seized, what the

basis of the affidavit was, and then we wouldn't have to get to

this point of involving the Court. So there was some period of

time. I don't want to say, you know, 12 days, two days, 14

days, but some of this was effectively exploring whether we

were going to have a level of cooperation that allows us to not

defer to, you know, to run to the Court for assistance.

There are other factors as well, but I think that's

kind of the cleanest way I can address it for Your Honor.

THE COURT: Finally, in your estimation, in

consideration of the potential need to appoint a special

master, is there a need for the Court to conduct a formal 

Rule 65 analysis for injunctive relief insofar as there may be

a need, in conjunction with the appointment of a special

master, in part and parcel with that, to temporarily enjoin the

use of the documents for criminal investigative purposes

without affecting the DNI's review?

So my question is: Does the Court -- or should the

Court be conducting a formal Rule 65 inquiry baked into the

special master assessment?

MR. TRUSTY: I don't see any harm from that, from our

perspective, because in the context of "baking it in," you are

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trying to balance competing interests of parties. 

And as to ODNI component, I would just suggest, yeah,

you know, we have this old school notion presented to the Court

that, you know, if somebody is in the room looking at the

documents, that's going to tie it up and nobody else has

access. I mean, I think they could actually copy some of these

documents to allow for ODNI review. This notion that suddenly

a special master physically obstructs them from being able to

do their review seems antiquated to me. But, you know, we are

happy to brief that issue supplementally, since I don't think

we really touched it directly. But again, we welcome multiple

bases for involvement, and the idea for stopping this runaway

train on its tracks while the Court and the special master get

their opportunity to assess things I think makes sense.

THE COURT: And so, finally, when you say "assess

things," in the most precise way possible, what do you envision

and contemplate the special master actually doing with respect

to review of documents broadly?

MR. TRUSTY: I believe the special master would --

again, first thing has been taken care of, we think. We

haven't had a long time to look at it, but we think the idea of

a more detailed particular compliant inventory is kind of off

the list. That's great.

Practically, the idea of stopping the initial review

has been mooted by the way that they have been so expeditious,

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and they've even turned over materials to the trial team. But

I think that the special master would be in a position to fully

assess the current privileged classifications that have been

made, to again involve our -- get our involvement in this, as

well, which is overdue, in identifying which documents might

fall within the privilege. We think the special master will be

in a position to assess personal versus Presidential documents

under the framework of the PRA and executive privilege. We

think all of that is the type of thing it would be, I suspect,

economical and make sense to be conducted along with the

physical review of the documents to throw that to the special

master, allow us to use that time. Ultimately, there may well

be reasons to come back to this Court, but I think that's an

efficient model for getting to a bottom line of where we

disagree and where we agree, if anywhere, when it comes to the

classification of all of these seized materials.

I know that wasn't nearly as pithy as Your Honor

wanted, but I just wanted to make sure I covered that.

THE COURT: Any response from the Government?

MR. BRATT: Yes, Your Honor.

On the Rule 65 question that the Court asked, if --

and that would actually have been a clarification, if the Court

were to say that only ODNI can have access to the records to do

its damage assessment and that the Government and the FBI has

to stop doing that, then I'm assuming the Court is enjoining

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us, and the Court would have to make the findings that are

necessary under Rule 65.

THE COURT: And what authority do you have for that?

I have seen the special master orders that include a

component of injunctive relief without officially going through

a Rule 65 inquiry. Logically, the idea being that the special

master would go first, effectively review the documents, go

through them orderly, receive, and recommend; and then

following that review, turn over the materials back to the

Government. So I think in that sort of logical sequence, why

would a Rule 65 inquiry be essential?

MR. BRATT: Because as Ms. Edelstein pointed out,

those cases are different. They involve attorney-client

information. They involve possible taint. They involve Sixth

Amendment -- 

THE COURT: But there is no dispute that there are at

least 100 or so if not more documents that have been marked at

least as "potentially privileged."

MR. BRATT: I don't know, so I --

THE COURT: Okay. But I think the public

representations are that there are materials that have been

designated as "potentially privileged," there is no dispute

about that.

MR. BRATT: There is no dispute about that.

So I will separate the attorney-client, because I do

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think that raises different issues from the special master

filtering and still not quite understanding how it would filter

for executive privilege, particularly if it is a privilege that

cannot be asserted against the current executive.

But the difference with the attorney-client matters

are, you know, for all of the reasons that courts have ordered

a special master, you know, searches in law firms or attorneys,

those -- those don't exist with respect to the Presidential

records. And I will tell the Court, you know, how it does slow

down because in addition to the damage assessment that ODNI is

doing, in any retention case, as we call these types of cases,

in any illegal retention case under the Espionage Act, we also

start looking at, all right, are these documents still

classified? So there is a classification review.

Classification is different from national defense information

under the case law, okay. So even if it is classified, does it

contain national defense information even if it is not

classified? Does it not contain national defense information?

As the Court is aware, we are dealing with over 300 records

here. That process has begun. That process needs to continue.

If the Court says only ODNI can look at this for

purposes of damage assessment, that is going to interfere with

the investigation, and that's something the Court, I think, has

to enjoin us from doing. And if it is going to enjoin us from

doing it, it is has to go through the Rule 65 factors.

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I don't think the Government in any of the cases

where a special master has been appointed for attorney-client

purposes has ever said, okay, we still want to look at the

stuff. I think the Government has always agreed that it would

step aside during that review by the special master. We don't

find ourselves in that position with respect to the classified

and other Presidential records. 

So I think the Court, if it is going to tell us, you

cannot use these for any other purpose, would have to enjoin

us.

To return briefly to the Court's question about

irreparable injury, first -- and I should have said this at the

outset, I think for purposes of this proceeding, the Court has

to accept that it was a valid warrant, that this was a lawful

search. So, again, the interests that a party could seek to

vindicate through a suppression motion are not at play here.

This was a lawful search. This was not, as the

magistrate judge found in finding probable cause for violations

of three criminal statutes, this was not an end run around the

Presidential Records Act. This is a valid search warrant for

evidence of three significant federal crimes.

The fact that the investigation is going to continue,

that is not the type of irreparable injury that courts have

recognized as supporting either an injunction or the exercise

of equitable jurisdiction for purposes of Rule 41

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pre-indictment. And if that's what they are saying is their

irreparable harm, there is no case that supports it. They cite

none. I'm not aware of one, and I don't think the Court can

find it.

Last, I'm sort of reluctant to get into a

back-and-forth, but since they do reference their conversations

with me in their briefs, I would say that on the morning after

the search, so 13 days before the filing of the motion, we

declined their request for a special master. There has been no

subsequent re-upping of that request to us.

Also, on day one of the search, they knew the

identity of at least one of the filter attorneys and would have

been able to be in contact with that filter attorney. Also, on

day two, they were told that the filter review had begun and it

would take about two weeks, give or take, to get it done.

Again, my understanding is the filter team was prepared to

reach out to counsel, but for this intervening hearing and

motion and have instead gave its position to the Court in the

notice which they now have.

THE COURT: But just so I understand, upon

discovering that there were potentially privileged materials in

the seized property, there was no communication to Plaintiff's

counsel of the presence of such potentially privileged

materials; is that correct?

MR. BRATT: Correct. They were told -- and again,

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since I'm not part of it, I also didn't know what the status

was. But they were told that the review for potentially

documents that had been segregated as potentially privileged,

the review by the filter team, by the filter attorneys had

begun. They were aware of that.

THE COURT: Let me ask also, there has been some

discussion in the filings related to leaks or disseminations of

information to the media. Are you aware, Mr. Bratt, of any

such dissemination to the media, relative to the contents of

the seized records?

MR. BRATT: Not on the part of anybody that I'm

working with. Obviously, you know, things -- I see the same

things in the press that other people do. It's bad. People

are talking. If people on the Government's side are talking

about it, I'm not aware of anybody that we work with that has

had contact with the press and certainly don't condone it in

any way.

THE COURT: All right.

I guess one final question I have. I know there has

been some discussion about the typical special master scenario

involving an attorney's office. Is there any authority that

would cabin the appointment of a special master only in the

more formal or traditional attorney context? In other words, I

haven't seen such a sort of carve-out in the special master

law, even if ordinarily that's how they arise.

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MR. BRATT: So in the context of searches, I'm only

aware -- and Ms. Edelstein, I know, has dived into -- deeper

into the case law than I have. I'm only aware of a special

master being appointed in however many cases there are to

filter for attorney-client. I'm not aware of any other sort of

privilege issues ever being referred to a special master.

THE COURT: I believe in one case, the Government

initiated the request and, in that request, did refer to the

appointment of a special master for purposes of executive

privilege.

MR. BRATT: So that's the Giuliani matter, and we

inquired of our colleagues in the Southern District of New

York, and they told us and they confirmed it with the special

master that there was no review for executive privilege in that

case. The only review that occurred was for attorney-client.

THE COURT: But there was no objection to

conceptually the special master engaging in that work as well.

MR. BRATT: So again, I wasn't part of, you know,

what was -- I know there was a letter from that office to the

court. I don't know how that came up or why somebody

envisioned that. It certainly -- and again, that was a private

attorney for the former President. Certainly the volume, to

the extent -- and somebody outside of government, so to the

extent that there even would have been potentially executive

privilege documents in those materials is a little hard to

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 44 of 70
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conceive, but maybe somebody, you know, had a concern about

that. 

This is entirely different. This is -- these are,

you know, scores of executive branch or documents that are

potentially subject to executive privilege.

THE COURT: All right, thank you.

I did have some questions for the filter review team

attorneys, so Mr. Lacosta or Mr. Hawk.

MR. HAWK: Yes, Your Honor; Benjamin Hawk on behalf

of the United States.

THE COURT: Good afternoon.

MR. HAWK: Good afternoon.

THE COURT: I was curious if you could offer any

observations about the safeguards that have been taken in the

course of conducting the privilege review team.

My review of the records indicates that there might

have been at least some inadvertent transmission of materials

without, of course, revealing any sensitive information. So

with that in mind and given Plaintiff's suggestion that there

may have been also some missteps initially in the execution of

the warrant in terms of not doing a full privilege review of

the entire premises, I wonder what the Government's position

was on that score.

MR. HAWK: Yes, Your Honor. I'm happy to address

those questions.

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One point, in terms of clarification, we set forth

the process that we followed in some of the matters that Your

Honor is referencing in our notice which remains under seal

with permission of counsel concurrence. I would propose I have

permission to be able to speak about the content of that

notice. It doesn't touch on any items that could potentially

be privileged.

I would further suggest, Your Honor, at a point in

time Your Honor would deem appropriate, we would unseal that

notice, perhaps with redactions to the extent the parties can't

come to any agreement with any materials that might be

potentially privileged.

THE COURT: And I appreciate the concern.

Mr. Kise or Mr. Trusty, any objection to general

discussion of the procedures without preference to any

privileged items.

MR. KISE: No, Your Honor. As stated, our concerns

really relate to waiver of the substantive privileges.

Anything that doesn't touch on that, we are satisfied with.

THE COURT: You may proceed.

MR. HAWK: Thank you, Your Honor.

So as explained in our notice, the Government took

the attorney-client privilege -- the possibility of

attorney-client privilege issues very seriously, beginning with

setting forth protocol that the filter team and case team would

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follow in the search warrant affidavit which is now unsealed

and available to the public. In addition, the filter team and

case team had conversations with the filter agents to give them

direction.

I want to make clear that the filter team agents

applied a very broad and expansive criteria and standard to

attorney-client privilege being any document that they saw that

appeared to be legal in nature were contained in the attorney

name -- or readily identifiable attorney name, they immediately

segregated and identified as potentially privileged.

To take a step back in terms of the actual execution

of the search, Your Honor, the search warrant protocol, the

filter protocol set forth in the affidavit does address what we

call the "45 Office that I understand to be the office of the

former President. However, the case team did elect at the time

of the search to apply the same filter protocols to the actual

storage room, the other location where evidence and items were

seized, and so the same filter process was applied to both

locations, which I think is important. So the filter team

agents did an initial review and search of those areas before

the case team agents did.

And upon finding items that appear, again applying an

extremely expansive view of the attorney-client privilege to be

over inclusive and err on the side of caution given the

circumstances of the search, when they identified something

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that was legal in nature or contained a name of readily

identifiable attorney, they then -- that, for example, was in a

box commingled with evidence responsive to attachment B, they

sealed that box, they marked it as potentially privileged, and

the filter agents maintained custody and control and segregated

that from the case team from the moment that evidence was

identified to the point where it was transferred to the

Washington field office. Those items, Your Honor, pursuant to

the protocol, again were identified as being potentially

privileged applying that broad standard, that was the first

step of the filter process.

The second step of the filter process, which is also

set forth in the affidavit, was for the filter attorneys to

then take a look and apply a legal analysis to the items and

the documents that the filter agents had identified as

potentially had privileged. Mr. Lacosta and I did that. There

is not a high volume of materials, as Your Honor is aware and

made reference to. It is approximately 520 pages, and 64 what

we call "sets of materials" that could be one document or two

copies of the same document or several documents that perhaps

are related in nature.

Mr. Lacosta and I took the time methodically to go

through those items to assess what we had and what the

potential issues could be. And I want to pause here for a

moment, Your Honor, and address some comments that Mr. Trusty

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had made about the filter team and our communication.

So as Mr. Bratt pointed out, I was identified as the

primary point of contact for the filter team at the outset of

the search warrant and the execution of it. I would have

assumed that counsel, had they had any questions or issues or

concern, knew how to contact me and would have done so. I did

not reach out nor did Mr. Lacosta because we wanted to be in a

position to understand what we had.

We are only a few weeks out of the search warrant,

Your Honor, and we wanted to be able to assess, determine what

were the potential issues, and actually be in a position to

have meaningful conversations with counsel so we could address

questions to the extent we could answer them. That all

coincided with the motion that Plaintiff filed in this case.

Respectfully, Your Honor, we were prepared to communicate and

reach out to counsel and to actually provide them with a copy

of all of those items that I referenced for them to review and

assert privilege so we could move through the steps set forth

in the protocol and the warrant. Given Your Honor's

preliminary opinion to appoint a special master to this matter,

we wanted to be respectful of the Court and we wanted to allow

the Court time to consider the issues before the Court and also

rule on them, so we put a pause on that process. Generally

speaking, as the Court is aware and counsel now knows, in our

notes we filed, we set forth a proposal in terms how to proceed

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and continue.

So going back to the filter process, Your Honor, when

Mr. -- there were two instances that Your Honor noted. I can't

get into specifics. I think my view I can offer at this point

is, I think to the extent we call them "inadvertent exposure,"

I would use that terminology and view it in terms of exercising

an abundance of caution until we have actually made a

determination and consultation with counsel as to whether those

items are actually privileged in nature because, again, the

Government applied an expansive criteria to attorney-client

privilege. 

Those two instances I would also reference, Your

Honor, are examples of the filter process actually working

where the case team -- and this is actually set forth again in

the protocol in the warrant, where the case team identified

something that they determined warranted further review. And

again, without getting into specifics, I can offer in this

setting one example is seeing the top of the letterhead with a

firm name. Case team ceased reviewing that item in that box;

and as they should appropriately, turned it over to the filter

review team and Mr. Lacosta and I to conduct a further review

analysis.

In the second instance, Your Honor, again, I think

this is being personally over inclusive in an abundance of

caution recognizing the circumstances that we find ourselves

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in, the second instance was again an item generally speaking --

Your Honor, if you can give me a moment just to think on how to

frame this.

The second instance was an item where a case team

attorney saw that there might be -- saw that there might be --

saw that there were -- bottom line is, Your Honor, I do not

believe this information is privileged, but I still want to be

respectful, and I want respect the process and Counsel's

opportunity to assert, but it was an instance where, I believe

in my view, the case team attorney was exercising extreme

caution in identifying a document that could potentially

include privileged information and so, exercising that caution,

gave it to the case team -- or gave it to privilege review team

to review, and that Your Honor, as counsel --

THE COURT: And that currently remains in the

potentially privileged pile, so to speak?

MR. HAWK: Yes, Your Honor.

Everything, Your Honor, in terms of any -- again, we

are using the term "potentially privileged," but that is what

is in that category of information, it is our view the vast

majority of it is not privileged. But again, we are respecting

the process and the protocol set forth.

THE COURT: So of the 540 documents that have

tentatively been deemed potentially privileged and in the

Government's expansive view of that term, did any of those

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documents originate from somewhere other than the storage room

or the 45 Office?

MR. HAWK: Your Honor, one minor clarification;

respectfully, it is 520 pages.

THE COURT: Oh, I'm sorry, 520 pages. Thank you.

MR. HAWK: We categorize it as 64 sets of materials.

Not to my knowledge, no, Your Honor. The evidence

that was provided to us to review, my understanding came from

the storage room and the 45 Office and nowhere else.

If I may also briefly, Your Honor, just for the

record and sake of clarity, when I say "maintain custody and

control," I mean maintain custody and control. When something

is given to the privilege review team, the FBI has a separate

room that is locked that only the privilege review team has

access to via their badge that nobody else has access to. And

we take it very seriously, even though we don't think the

majority of it is privileged; but to be respectful of the

process which, again, we would have engaged counsel but for the

current issue before the Court.

THE COURT: Thank you very much, Mr. Hawk.

MR. HAWK: Your Honor, if I may.

THE COURT: Yes.

MR. HAWK: We would like to seek permission to

provide copies -- the proposal that we offered, Your Honor,

provide copies to counsel of the 64 sets of the materials that

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are Bates stamped so they have the opportunity to start

reviewing.

THE COURT: I'm sorry, say that again, please.

MR. HAWK: The privilege review team would have

provided Bates stamped copies of the 64 sets of documents to

Plaintiff's counsel. We would like to seek permission from

Your Honor to be able to provide those now, not at this exact

moment but to move forward to providing those so counsel has

the opportunity to review them and understand and have the time

to review and do their own analysis of those documents to come

to their own conclusions. And if the filter process without a

special master were allowed to proceed, we would engage with

counsel and have conversations, determine if we can reach

agreements; to the extent we couldn't reach agreements, we

would bring those before the Court, whether Your Honor or Judge

Reinhart. But simply now, I'm seeking permission just to

provide those documents to Plaintiff's counsel.

THE COURT: All right. I'm going to reserve ruling

on that request. I prefer to consider it holistically in the

assessment of whether a special master is indeed appropriate

for those privileged reviews. I think Mr. Bratt is hoping to

get a few more minutes in.

So, Mr. Bratt, I'll hear from you and then give

Plaintiff's counsel an opportunity up to present any additional

argument.

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MR. BRATT: Thank you, Your Honor. I apologize, if I

was looking overly anxious to speak.

My colleagues reminded me of something in response to

your question about the Giuliani proposal and how this case is

so much different from even any conceivable case that would

also have involved Presidential records, and that is because we

have over 300 classified documents here. The proposal would be

not only to have somebody outside of the Executive Branch

review for executive privilege, but also to turn over to that

person classified documents to get that person the necessary

clearances of which there are many and then --

THE COURT: I just want to be clear. The inventory,

I saw the references, it is marked as "classified."

MR. BRATT: Fine. Not to presuppose the review, yes,

documents bearing -- maybe a better way to put it, documents

bearing classification markings. There are over 300 of those.

We treat them presumptively as classified. We would not turn

them over to somebody that does not have the appropriate

clearances.

Also under the protocols that are proposed by the

Plaintiff, they would regain access to those including

potentially the former President. We have no idea where they

would be stored; and again, this would be giving access to

people things that they do not have the right to have access,

at this point in time, all for, you know, what we think is a

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fanciful view that somehow they would be successfully able to

interpose an executive privilege objection that would prohibit

the Executive Branch from reviewing the Executive Branch

materials for a core Executive Branch function.

Thank you.

THE COURT: Thank you. All right.

Final thoughts from Plaintiff's counsel, then we will

recess.

MR. TRUSTY: Your Honor, I'll be very brief.

Just in terms of the things we just heard from

Government counsel, again, without getting specific, we are now

hearing with the unveiling or the kind of not literal but

beginning of unveiling of a self-assessment by the filter team

of how they conducted themselves, that the wall broke and you

are being told, "Trust us, it is no big deal, we were really

being conservative." Maybe that's exactly how it plays out,

but this is the wrong case to keep getting these late

assurances from the filter team that, you know, there is

nothing to worry about.

The record should probably reflect, if it doesn't

already, that I believe Mr. Hawk is a deputy within Mr. Bratt's

section at DOJ. And it is interesting to me -- again, not to

put too fine a point on it, but when there is a filter

situation, whether it is a capital case, whether it is a

privilege review, whatever it may be that calls out for

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sequestration of the litigation, it's very easy, particularly

in this case called "Washington D.C.," to tap someone who is

truly disconnected not only from the criminal investigation but

from the supervisory chain. And what the National Security

Division did was they picked the deputy within the section that

is doing the criminal investigation. They could have turned to

any section of DOJ or to a U.S. Attorney's Office; they didn't

do that.

Again, I'm not trying to overstate concerns here, but

I'm also not willing to ignore concerns. This is a situation

where -- of the Government's own doing where this -- again, the

modest amount of supervision that we are suggesting makes

sense.

As to the latest bogeyman, the latest obstacle kind

of thrown before the Court in terms of this potential process,

that clearance is really complicated and takes a lot. Well,

first of all, I have TS clearance right now which I think would

carry through; but if there is a special master that doesn't

have clearance, it can be expedited by JMD at the Department of

Justice. This is not something that is going to take -- it

doesn't have to take weeks or months. It can be done very

quickly, particularly with a gentle prod from this Court. So,

you know, these are -- it's almost like chasing somebody who

keeps throwing trash cans behind them to try to stop you from

catching up, and that's what we are seeing this afternoon.

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The last thing I would just say is the deprivation of

access to these records that is continuing, to this point, is

actually a violation of 2205. It is a violation of the

Presidential Records Act because President Trump has unfettered

access to Presidential and personal records. 

Look, all we are saying is get another set of eyes on

it so we can have some assurance that the process is fair in

this extraordinary case. 

And we appreciate Your Honor's obviously very active

interest in this matter in terms of your questions today and

the expeditious nature of the hearing. And if there is no

other questions, I'll sit down.

THE COURT: All right, thank you.

I have nothing further.

But if the Government's wishes couple minutes to

respond, I'm happy to hear any final observations, and then I

will be recessing this hearing.

The Court will not be entering any order orally, but

will be entering a written order in due course.

Mr. Bratt.

MR. BRATT: Just briefly, Your Honor.

With respect to Mr. Hawk, while in the ordinary

course, he is my deputy for expert control and sanctions. We

felt collectively it was important to have a person on the

filter side with a strong national security background; but for

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purposes of this matter, he does not report to me. He reports

elsewhere.

THE COURT: Thank you.

All right. I appreciate the parties' assistance. I

appreciate the members of the gallery maintaining decorum. 

The Court is in recess.

THE COURTROOM DEPUTY: All rise.

(PROCEEDINGS ADJOURNED AT 2:40 p.m.) 

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 58 of 70
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C-E-R-T-I-F-I-C-A-T-E

 I hereby certify that the foregoing is 

 an accurate transcription and proceedings in the 

 above-entitled matter. 

9/2/2022 /s/DIANE MILLLER

 DATE DIANE MILLER, RMR, CRR, CRC 

 Official Court Reporter 

 United States District Court 

 101 South U.S. Highway 1 

 Fort Pierce, FL 34950 

 772-467-2337 

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Case 9:22-cv-81294-AMC Document 127 Entered on FLSD Docket 09/29/2022 Page 59 of 70
 MR. BENJAMIN:

 [1] 6/1

 MR. BRATT: [21] 

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 MR.

 CORCORAN: [1] 

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 MR. GONZALEZ:

 [1] 2/18

 MR. HAWK: [10] 

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 53/4

 MR. KISE: [10] 

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 MR. LACOSTA:

 [1] 6/7

 MR. TRUSTY:

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 MS. HALLIGAN:

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 THE COURT: [63]

 THE

 COURTROOM

 DEPUTY: [3] 2/2

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/

/s/DIANE [1] 59/5

1

100 [1] 39/17

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15-minute [1] 

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2022 [2] 1/5 59/5

22-81294-CIV-CA

NNON [1] 1/2

22-CV-81294 [1] 

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520 [3] 48/18 52/4

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772-467-2337 [1] 

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81294 [1] 2/3

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above [1] 59/4

above-entitled [1]

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absolutely [3] 

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abundance [3] 

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access [14] 17/9

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accessing [1] 

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accompanying [1]

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accordance [1] 

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accusatory [1] 

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acknowledge [1] 

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act [12] 15/9 16/7

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action [3] 3/10

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actions [2] 25/24

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addition [5] 22/8

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address [9] 16/3

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adequate [2] 22/9

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adhere [1] 7/14

ADJOURNED [1] 

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administration [3]

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administrative [1]

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admittedly [1] 

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affidavit [9] 13/1

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afternoon [17] 

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agents [8] 11/25

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aggrieved [1] 

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allow [6] 11/1

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allowed [3] 10/1

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allows [3] 11/11

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almost [1] 56/23

alone [4] 4/7

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amazing [2] 

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AMERICA [2] 1/6

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amount [1] 56/12

analysis [5] 19/22

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announce [1] 

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applicable [1] 

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apply [4] 25/16

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applying [2] 

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appointed [4] 

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appointed... [4] 

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appointing [3] 

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appointment [9] 

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archivist [3] 

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articulation [1] 

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asserting [4] 

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attorney-client

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background [1] 

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CHRISTOPHER

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classification [7] 

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clearance [3] 

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close [1] 26/19

Code [1] 25/7

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collectively [1] 

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commence [2] 

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communication

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confirmed [2] 

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considerations

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creating [2] 15/10

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cries [2] 13/11

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criminal [15] 

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D.C [1] 56/2

damage [6] 28/13

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decide [1] 13/8

decided [2] 20/19

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decision [1] 

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decline [1] 21/16

declined [1] 42/9

decorum [1] 58/5

deem [2] 11/9

 46/9

deemed [1] 51/24

deep [1] 8/21

deeper [1] 44/2

defeats [1] 21/15

defendant [4] 

 1/18 12/17 12/17

 12/18

Defendants [1] 

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defense [5] 5/17

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defer [2] 5/16

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definition [1] 

 32/14

delay [4] 23/11

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demands [1] 

 32/17

demonstrates [1] 

 9/8

Department [7] 

 1/21 9/2 32/25

 33/2 33/8 33/15

 56/19

deprivation [1] 

 57/1

deputy [3] 55/21

 56/5 57/23

designated [1] 

 39/22

designee [1] 16/1

despite [1] 24/19

detailed [3] 3/20

 4/3 37/22

determination [1] 

 50/8

determinations

 [1] 15/8

determined [1] 

 50/16

developments [1] 

 10/5

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diane [4] 1/24

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difference [1] 

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difficultly [1] 

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direct [1] 32/18

directed [1] 6/4

direction [1] 47/4

dirt [1] 12/11

disagree [1] 

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disclose [1] 

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disclosing [1] 

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disconnected [1] 

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discovering [1] 

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discretion [1] 

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discussion [3] 

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discussions [1] 

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dispose [1] 29/16

dispute [8] 21/4

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disputes [1] 

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disregard [3] 

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disregarded [1] 

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dissemination [1] 

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disseminations

 [1] 43/7

district [10] 1/1

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dived [1] 44/2

division [3] 1/2

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DNI [1] 29/3

DNI's [1] 36/20

docket [2] 4/22

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doctrine [1] 11/25

document [12] 

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documents [42] 

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DOJ [2] 55/22

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DONALD [2] 1/3

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dry [1] 24/11

E

early [1] 36/1

easy [1] 56/1

economical [1] 

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EDELSTEIN [7] 

 1/19 2/21 3/25

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effect [1] 29/2

effectively [2] 

 36/8 39/7

efficient [1] 38/14

effort [1] 28/14

ego [1] 14/18

elect [1] 47/15

eliminate [1] 33/2

elsewhere [1] 

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emphasize [1] 

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emphasizes [1] 

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enforcement [2] 

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engage [2] 14/20

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engaged [1] 

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engaging [1] 

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enjoin [4] 36/18

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enjoining [1] 

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entirely [3] 16/8

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entitled [4] 32/4

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entry [2] 4/22 5/3

envision [1] 

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envisioned [1] 

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equipped [2] 23/7

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equitable [7] 21/6

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equity [7] 20/19

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equivalent [1] 

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err [1] 47/24

especially [3] 

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Espionage [1] 

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ESQ [10] 1/13

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essential [1] 

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essentially [4] 

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establish [1] 19/6

established [1] 

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estimation [1] 

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EVAN [3] 1/15

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evening [1] 26/17

event [1] 3/10

everybody [2] 

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evidence [6] 

 21/24 41/21 47/17

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evident [1] 8/12

ex [1] 32/15

ex-president [1] 

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examinations [1] 

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examine [1] 

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examples [1] 

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execution [3] 

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executive [44] 

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exercise [7] 19/4

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exercised [1] 

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exercising [3] 

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exercitation [1] 

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exist [2] 19/14

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expansive [4] 

 47/6 47/23 50/10

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expectation [2] 

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expedited [1] 

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expeditious [5] 

 9/25 16/1 17/17

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expense [1] 

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expert [1] 57/23

explore [1] 35/4

exploring [1] 36/8

exposure [1] 50/5

extent [7] 30/15

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extraordinary [7] 

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extreme [1] 51/10

extremely [1] 

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eye [1] 8/12

eyes [1] 57/6

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faced [1] 12/5

facilitated [1] 

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fact [8] 9/7 16/16

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factor [4] 19/14

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factors [7] 21/6

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fair-minded [1] 

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faith [1] 8/18

fall [2] 35/22 38/6

fanciful [1] 55/1

fangled [1] 14/23

fashion [3] 16/1

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favor [2] 21/7

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favored [1] 23/5

FBI [3] 28/18

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FBI's [1] 26/24

federal [3] 23/4

 25/8 41/21

feelings [1] 14/18

field [1] 48/8

figure [2] 15/9

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file [1] 35/14

filings [1] 43/7

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filter [48] 4/12 5/6

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filtering [1] 40/2

final [4] 5/5 43/19

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finally [2] 36/13

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findings [1] 39/1

firms [1] 40/7

FL [1] 59/8

FLORIDA [2] 1/1

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flow [1] 32/15

flsd.uscourts.gov

 [1] 1/25

focus [1] 24/20

focused [1] 30/15

forecast [1] 15/15

foreclosed [1] 

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foregoing [1] 

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forget [1] 33/7

form [3] 3/6 30/14

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formal [3] 36/15

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former [14] 19/17

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FORT [3] 1/2 1/4

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Fourth [8] 11/5

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frame [1] 51/3

framework [1] 

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frankly [4] 14/4

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Franks [1] 33/22

Fred [1] 13/22

free [1] 11/11

frequent [1] 19/9

frequently [1] 

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front [1] 10/3

fruits [2] 11/7

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function [2] 14/17

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fundamentally [1]

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furthers [1] 31/24

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gallery [1] 58/5

gathering [1] 

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general [8] 12/5

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gentle [1] 56/22

gets [1] 13/21

Giuliani [2] 44/11

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GONZALEZ [2] 

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govern [1] 25/8

government [27] 

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government's

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grand [1] 26/1

grappled [1] 24/2

great [2] 13/15

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greater [1] 9/19

greatest [1] 30/15

ground [1] 3/2

GSA [3] 24/2

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guiding [1] 16/11

gun [1] 32/25

guts [1] 34/1

H

HALLIGAN [3] 

 1/16 2/13 8/4

handle [5] 8/3

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happy [6] 7/19

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harder [1] 32/22

harm [10] 15/1

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HAWK [7] 1/21

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hearing [11] 1/9

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heartened [1] 

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helpful [1] 16/11

hereby [2] 3/5

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highest [2] 31/17

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highly [1] 25/6

Highway [1] 59/7

historic [3] 10/18

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historically [1] 

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holistically [1] 

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home [1] 11/25

honor [70] 

Honor's [2] 49/19

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HONORABLE [1] 

 1/10

hoop [1] 30/18

hope [1] 33/4

hopeful [1] 36/2

hopefully [2] 

 15/13 16/11

hoping [1] 53/21

horse [1] 20/1

housekeeping [1] 

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Howell [1] 20/18

hundred [1] 

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hurry [1] 9/11

I

identifiable [2] 

 47/9 48/2

identity [1] 42/12

IFRAH [1] 1/14

ignore [2] 34/7

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illegal [2] 11/9

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immediately [1] 

 47/9

impartial [1] 8/7

implicate [1] 14/6

impossible [1] 

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improper [1] 

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inability [1] 33/12

inadvertent [2] 

 45/17 50/5

inclusive [2] 

 47/24 50/24

incredibly [1] 

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incriminating [1] 

 22/5

indeed [1] 53/20

indicted [1] 33/24

indictment [6] 

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individual [1] 

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inequitable [1] 

 33/17

inference [1] 10/8

informal [1] 35/15

information [16] 

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inherent [1] 34/3

initial [2] 37/24

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initially [1] 45/20

initiated [1] 44/8

injunction [2] 

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injunctive [2] 

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injury [5] 22/1

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injustice [1] 

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inquire [1] 4/1

inquired [1] 44/12

inquires [1] 19/5

inquiry [4] 11/18

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insertion [1] 13/6

insofar [1] 36/16

instance [4] 

 50/23 51/1 51/4

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instances [3] 

 26/2 50/3 50/12

instead [1] 42/18

institution [1] 

 32/24

institutional [2] 

 33/5 33/7

integrity [2] 8/18

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intelligence [2] 

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intention [1] 35/4

interest [11] 10/2

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interests [3] 28/3

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interfere [3] 

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interpose [1] 55/2

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intervening [1] 

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intervention [1] 

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intrusion [3] 

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invaded [1] 11/25

invalidate [1] 

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invariably [1] 

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inventory [12] 

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investigation [17] 

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investigations [1] 

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investigative [4] 

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invocation [1] 

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involvement [6] 

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irreparable [8] 

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issuance [1] 

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issue [14] 5/5

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issues [22] 9/15

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item [3] 50/19

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items [14] 15/23

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J

JAMES [1] 1/14

JAY [2] 1/18 2/16

Jim [2] 2/9 8/3

JMD [1] 56/19

joint [1] 7/10

judge [14] 1/10

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judicial [5] 3/14

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judicially [1] 16/7

JULIE [2] 1/19

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jump [1] 17/23

jumping [1] 30/18

jurisdiction [15] 

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jurists [1] 33/4

jury [1] 26/1

justice [11] 1/21

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justifies [1] 12/12

justify [2] 11/14

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K

key [4] 19/14

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kick [1] 16/22

KISE [7] 1/13

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knows [1] 49/24

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LA [1] 1/20

lack [4] 8/9 8/13

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LACOSTA [9] 

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laid [1] 29/17

language [2] 

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large [1] 30/20

late [1] 55/17

latest [2] 56/14

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law [15] 11/6

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lawful [2] 41/14

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laws [1] 18/12

leading [1] 3/23

leaking [1] 13/4

leaks [1] 43/7

legal [4] 24/21

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legitimate [4] 

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lengthier [1] 6/13

letter [5] 26/17

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letterhead [1] 

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levels [2] 17/12

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library [1] 31/20

limit [1] 28/7

limited [6] 10/9

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LINDSEY [3] 1/16

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list [2] 14/5 37/23

literal [1] 55/12

literally [3] 10/25

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litigate [1] 16/12

litigating [1] 35/9

litigation [2] 

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LLC [1] 1/16

local [2] 3/4 12/6

location [2] 8/25

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locations [1] 

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locked [1] 52/14

logical [2] 15/22

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logically [2] 

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lower [1] 8/20

M

magistrate [4] 

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magnitude [1] 

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main [4] 5/14 8/4

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maintain [2] 

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maintained [1] 

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maintaining [1] 

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majority [2] 51/21

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manifest [1] 

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marginalized [1] 

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markings [1] 

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Masks [1] 2/25

master [56] 1/9

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masters [2] 18/22

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material [2] 7/3

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materializes [1] 

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materials [30] 

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matter [12] 3/18

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matters [6] 16/6

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May 10th [3] 

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may I [1] 17/22

meaningful [1] 

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measure [1] 

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mechanism [3] 

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media [6] 3/6 3/6

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members [3] 3/5

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mentality [1] 

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methodically [1] 

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middle [1] 9/4

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military [1] 9/3

miller [3] 1/24

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MILLLER [1] 59/5

minded [1] 33/4

minor [2] 17/22

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minus [1] 6/24

misstatements [1]

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missteps [1] 

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model [2] 33/25

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modest [7] 10/16

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moment [9] 4/24

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moments [1] 

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monitoring [1] 

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months [1] 56/21

mooted [1] 37/25

motion [17] 1/9

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motions [1] 13/10

motivation [1] 

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MR [8] 5/21 5/24

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Mr. [24] 4/13 4/21

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Mr. Bratt [7] 4/13

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Mr. Bratt's [1] 

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Mr. Hawk [4] 45/8

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Mr. Jim [1] 8/3

Mr. Kise [2] 4/21

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Mr. Lacosta [5] 

 6/4 48/16 48/22

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Mr. Trusty [4] 

 9/21 17/23 20/13

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MS [2] 2/22 3/25

Ms. [4] 18/20

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Ms. Edelstein [4] 

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multiple [4] 26/2

 28/3 36/1 37/11

mutually [1] 15/5

N

NARA [5] 25/15

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NARA's [1] 25/17

narrow [1] 11/18

national [6] 29/4

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nature [8] 10/19

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nearly [1] 38/17

necessary [4] 

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negotiations [1] 

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neutral [1] 15/5

newly [1] 10/24

Nixon [6] 24/2

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nobody [2] 37/5

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noncriminal [1] 

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none [1] 42/3

notably [2] 25/18

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notice [6] 14/13

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notion [6] 10/9

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nowhere [1] 52/9

number [2] 2/2

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objection [11] 4/2

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observations [2] 

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obstacle [1] 

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obstructs [1] 

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ODNI [7] 10/24

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ODNI's [1] 28/25

offer [3] 45/13

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office [14] 9/11

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offices [1] 29/24

official [4] 1/24

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officially [1] 39/5

Oh [1] 52/5

omissions [1] 

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ongoing [6] 28/13

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open [1] 35/23

opinion [3] 14/3

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opportunity [7] 

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oppose [1] 3/19

optional [1] 2/25

orally [1] 57/18

order [10] 3/5 3/9

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orderly [4] 9/17

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orders [1] 39/4

ordinarily [1] 

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ordinary [1] 57/22

originally [1] 

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originate [1] 52/1

outrageous [1] 

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outset [3] 27/21

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overarching [2] 

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overcome [1] 

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overdue [2] 31/20

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overly [1] 54/2

overreading [1] 

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oversight [1] 3/14

overstate [1] 56/9

overview [1] 7/17

ownership [1] 

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P-R-O-C-E-E-D-IN-G-S [1] 2/1

p.m [3] 6/17 6/18

 58/8

pages [4] 1/6

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paper [1] 9/3

papers [3] 16/24

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paradigm [2] 16/5

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parcel [1] 36/18

part [6] 28/18

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partial [1] 12/10

parties [8] 7/13

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parties' [1] 58/4

party [6] 15/6

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path [1] 9/17

pause [2] 48/24

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pausing [1] 29/1

people [5] 9/19

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perceived [2] 

 8/13 8/17

perception [1] 

 8/15

perfectly [2] 

 12/23 13/6

perhaps [5] 9/18

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 48/20

period [3] 24/9

 29/4 36/6

permission [6] 

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permitted [1] 

 28/24

person [4] 18/15

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personal [6] 

 14/18 15/9 16/9

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perspective [5] 

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phenomenal [1] 

 11/4

phone [1] 13/21

photograph [1] 

 13/7

picked [1] 56/5

PIERCE [3] 1/2

 1/4 59/8

pile [1] 51/16

pithy [1] 38/17

place [4] 8/21

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plaintiff [15] 1/13

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plaintiff... [1] 

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plaintiff's [23] 

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Plaintiffs [1] 1/4

play [7] 16/21

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plays [1] 55/16

pleading [6] 6/8

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pleadings [3] 

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pleasure [1] 9/24

PLLC [1] 1/14

point [19] 7/11

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poisonous [1] 

 11/7

politicized [1] 

 32/25

position [19] 5/10

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possession [6] 

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possessory [3] 

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possibility [2] 

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posture [1] 29/8

potential [5] 

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potentially [25] 

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PRA [7] 24/19

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Practically [1] 

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practice [1] 13/20

pre [6] 18/14 19/2

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pre-indictment [6]

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precise [2] 33/6

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prefer [1] 53/19

preference [1] 

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prejudice [1] 

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preliminarily [1] 

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preliminary [2] 

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premises [2] 20/4

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prepared [3] 

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presence [1] 

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present [4] 5/13

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presentation [1] 

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presidency [1] 

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president [33] 2/8

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President's [2] 

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presidential [29] 

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presidents [1] 

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press [3] 13/9

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presume [1] 

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presumptively [1] 

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presuppose [1] 

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pretrial [1] 34/4

prevent [1] 22/17

primary [1] 49/3

principles [1] 

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privacy [2] 20/3

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private [1] 44/21

privilege [56] 

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privileged [24] 

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privileges [5] 

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privy [1] 16/20

probable [4] 

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problem [1] 17/8

procedural [1] 

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procedurally [2] 

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procedure [2] 

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procedures [1] 

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proceed [7] 3/1

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proceeding [4] 

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proceedings [3] 

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process [16] 9/20

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prod [1] 56/22

product [3] 14/1

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prohibit [1] 55/2

prohibition [1] 

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proper [2] 9/16

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properly [2] 22/4

 35/8

property [10] 

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proposal [5] 7/19

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proposed [2] 

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propriety [1] 

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prosecution [1] 

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protocol [7] 

 46/25 47/12 47/13

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protocols [3] 

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provision [1] 

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provisions [3] 

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public [6] 8/7

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publicly [3] 4/17

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purposefully [2] 

 26/24 30/19

purposes [10] 

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pursuant [4] 3/9

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pursue [1] 35/7

pushing [1] 10/15

Q

qualified [1] 

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question [8] 6/4

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questioning [1] 

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questions [9] 

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quickly [2] 10/1

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radical [1] 33/8

raise [2] 24/9

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raises [1] 40/1

re [1] 42/10

re-upping [1] 

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reach [6] 33/12

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reached [1] 29/11

readily [2] 47/9

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ready [1] 12/16

reality [1] 14/25

realize [1] 32/9

recent [2] 15/16

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recently [1] 17/11

recess [4] 6/15

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recessing [1] 

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recognize [2] 

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recognized [3] 

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recognizing [1] 

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recommend [2] 

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record [3] 3/16

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recording [1] 3/3

records [45] 8/24

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recourse [1] 11/9

recreation [1] 

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redactions [1] 

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reference [3] 42/6

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referenced [2] 

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references [5] 7/3

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referencing [2] 

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reflect [1] 55/20

regain [1] 54/21

Regulations [1] 

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Reinhart [3] 

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reiterated [1] 

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relative [1] 43/9

release [2] 3/20

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released [1] 

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relief [5] 3/15

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reluctant [1] 42/5

reluctantly [1] 

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rely [1] 25/14

remain [4] 6/10

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remains [3] 11/16

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remedy [3] 22/9

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reply [1] 3/17

report [13] 4/11

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Reporter [2] 1/24

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reports [3] 8/17

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representation [1]

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representations

 [1] 39/21

request [9] 5/24

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required [1] 31/5

requirement [3] 

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reserve [1] 53/18

residence [2] 

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resistence [1] 

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resolution [1] 

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resolutions [1] 

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resolve [3] 16/4

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respected [1] 

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respectful [3] 

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respectfully [7] 

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response [5] 3/16

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responses [1] 

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responsive [1] 

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rest [1] 22/22

restore [2] 8/6 8/7

restraint [1] 

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restrictions [1] 

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Resumed [1] 6/18

retention [2] 

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return [6] 14/15

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revealing [1] 

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review [48] 4/12

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reviews [1] 53/21

Richey [6] 21/9

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rights [5] 18/15

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rise [2] 6/16 58/7

RMR [2] 1/24 59/6

role [2] 23/19

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room [6] 24/8

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Rosenbaum [1] 

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rule [29] 3/2 3/4

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rules [2] 23/4

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ruling [1] 53/18

runaway [1] 

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safeguards [1] 

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sake [1] 52/11

sanctions [1] 

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satisfied [1] 

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satisfy [1] 19/7

scenario [4] 

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schedule [1] 10/1

school [1] 37/3

scope [1] 21/23

score [1] 45/23

scores [1] 45/4

scot [1] 11/11

scot-free [1] 

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seal [6] 6/10 7/2

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sealed [1] 48/4

search [28] 12/8

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searches [3] 34/6

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second [8] 19/3

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secrets [1] 9/3

section [4] 13/23

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security [3] 29/4

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seek [4] 19/13

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seeking [5] 20/15

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seeks [1] 25/14

segregated [3] 

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seize [2] 32/5

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seized [10] 15/23

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seizing [1] 30/1

seizure [2] 23/23

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seizures [1] 34/6

selected [1] 15/5

selective [1] 13/3

self [1] 55/13

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self-assessment

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sense [5] 14/2

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sensitive [1] 

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sequence [1] 

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sequestration [1] 

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serious [2] 12/9

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seriously [2] 

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serve [1] 23/11

setting [3] 10/1

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shall [1] 14/6

sharing [1] 35/23

shocker [2] 11/16

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short [3] 15/12

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showings [1] 

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side [9] 5/15 7/16

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sides [3] 8/9 8/20

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sign [1] 14/19

Silverman [1] 

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situation [7] 7/5

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Sixth [1] 39/14

slow [1] 40/9

Slutkin [1] 1/15

Smith [1] 13/22

sneaking [1] 9/3

social [1] 3/6

solved [1] 15/19

SOPHIA [2] 1/20

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sorts [1] 9/12

sought [1] 27/1

South [1] 59/7

SOUTHERN [2] 

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special [59] 1/9

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specially [1] 30/7

specific [6] 16/9

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specifics [2] 50/4

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speeches [1] 

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spend [1] 13/14

splitting [1] 3/25

staffer [1] 9/3

stage [2] 18/15

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staged [1] 13/7

stamped [2] 53/1

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stand [1] 35/22

standard [2] 47/6

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standards [2] 

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standing [11] 

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starting [2] 23/3

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state [1] 2/4

state's [1] 12/6

stated [1] 46/17

STATES [20] 1/1

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status [12] 4/11

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statute [2] 25/19

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statutes [1] 41/19

statutory [1] 34/3

staying [1] 27/9

stems [1] 3/4

step [8] 12/4 15/1

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steps [1] 49/18

storage [6] 25/8

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stored [2] 22/4

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strategy [1] 10/8

street [1] 35/11

strictly [1] 19/12

strong [1] 57/25

submissions [1] 

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submit [1] 32/21

submitted [1] 

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subpoena [1] 

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subsequent [1] 

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substantial [1] 

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substantive [4] 

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succeed [1] 

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successfully [4] 

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suddenly [2] 

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suggest [7] 11/8

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suggesting [1] 

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suggestion [1] 

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suggestions [1] 

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suit [3] 23/15

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supervision [1] 

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supervisory [2] 

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supplementally

 [1] 37/10

supplied [1] 26/5

support [1] 31/1

supported [1] 

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supporting [1] 

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supports [1] 42/2

suppress [2] 

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suppression [4] 

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Supreme [1] 

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surrounding [1] 

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suspect [2] 35/3

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swaths [1] 30/20

system [1] 12/20

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table [2] 5/20

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taint [2] 5/15

 39/14

tap [1] 56/2

team [48] 4/12

 4/12 4/14 4/21 5/3

 5/6 5/20 6/12 7/12

 13/14 13/16 13/19

 13/24 14/4 14/8

 23/9 29/15 29/16

 33/13 38/1 42/16

 43/4 45/7 45/15

 46/25 46/25 47/2

 47/3 47/5 47/15

 47/19 47/21 48/6

 49/1 49/3 50/14

 50/15 50/19 50/21

 51/4 51/10 51/13

 51/13 52/13 52/14

 53/4 55/13 55/18

teams [1] 14/12

temerity [1] 10/22

temperature [2] 

 8/8 8/20

temporarily [2] 

 29/1 36/18

temporary [1] 

 29/4

tentatively [1] 

 51/24

term [5] 9/1 24/24

 25/10 51/19 51/25

terminology [1] 

 50/6

terms [23] 11/6

 16/11 16/18 17/8

 25/4 28/2 29/7

 29/12 30/4 30/16

 30/18 31/15 31/24

 35/6 45/21 46/1

 47/11 49/25 50/6

 51/18 55/10 56/15

 57/10

test [1] 27/25

text [1] 22/21

thank [20] 5/1 8/1

 9/22 9/23 9/25

 17/4 17/21 18/6

 18/7 18/9 30/12

 45/6 46/21 52/5

 52/20 54/1 55/5

 55/6 57/13 58/3

theories [1] 14/23

Thompson [1] 

 1/15

thorny [1] 30/9

thoughts [1] 55/7

threat [1] 33/5

throw [1] 38/11

throwing [1] 

 56/24

thrown [1] 56/15

tie [1] 37/5

time [23] 6/20 7/2

 7/7 11/23 15/12

 16/12 22/18 24/10

 25/2 26/6 27/1

 29/5 31/17 34/24

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T

time... [9] 36/7

 37/21 38/12 46/9

 47/15 48/22 49/22

 53/9 54/25

times [1] 31/20

timing [1] 35/20

TONY [4] 1/19

 1/20 2/18 5/21

topic [1] 21/17

touch [2] 46/6

 46/19

touched [1] 37/11

towards [2] 9/17

 10/13

tracks [1] 37/13

traditional [1] 

 43/23

TRANSCRIPT [1] 

 1/9

transcription [1] 

 59/3

transferred [1] 

 48/7

transformed [1] 

 31/23

transmission [1] 

 45/17

transmit [1] 3/6

transparency [3] 

 8/13 12/24 36/3

trash [1] 56/24

treat [1] 54/17

treatment [1] 

 9/25

tree [1] 11/7

trial [1] 38/1

triggers [2] 19/5

 19/6

TRUMP [9] 1/3

 2/3 2/8 2/10 2/12

 2/14 8/2 34/8 57/4

trust [4] 3/12 8/9

 14/10 55/15

TRUSTY [8] 1/14

 2/9 8/3 9/21 17/23

 20/13 46/14 48/25

TS [1] 56/17

turning [1] 4/13

typical [1] 43/20

U

U.S [7] 1/21 12/6

 13/22 30/1 35/25

 56/7 59/7

U.S.C [1] 18/1

ultimate [1] 34/10

Ultimately [2] 

 27/12 38/12

unchecked [1] 

 12/21

unclean [1] 22/21

unclear [1] 20/7

unconstitutional

 [1] 11/10

undermine [1] 

 18/10

underscores [1] 

 10/18

understanding [5]

 18/3 29/15 40/2

 42/16 52/8

undertook [1] 

 28/15

undisputed [2] 

 25/9 27/22

undo [1] 27/14

unenforceable [2]

 16/7 31/15

unfettered [2] 

 12/21 57/4

unfortunately [1] 

 35/22

unique [1] 8/6

UNITED [20] 1/1

 1/6 1/10 2/3 2/17

 2/19 2/21 2/23

 5/22 6/1 8/25 9/6

 9/13 12/3 24/22

 24/23 25/6 28/4

 45/10 59/7

universe [1] 35/6

unlawful [1] 

 22/19

unlawfully [1] 

 19/21

unmonitored [1] 

 12/22

unobserved [1] 

 12/22

unprecedented

 [3] 8/19 23/17

 28/8

unquestioningly

 [1] 20/4

unreasonable [1] 

 34/5

unrelated [1] 30/2

unseal [5] 12/7

 12/8 12/10 12/16

 46/9

unsealed [5] 4/10

 5/4 5/17 9/8 47/1

unsealing [5] 4/2

 4/6 4/23 6/24

 15/21

unusual [1] 13/10

unveiling [2] 

 55/12 55/13

update [1] 29/14

upping [1] 42/10

us [21] 10/1 10/11

 11/3 11/22 14/10

 14/15 15/22 17/12

 30/25 36/4 36/9

 38/12 39/1 40/24

 40/24 41/8 41/10

 42/10 44/13 52/8

 55/15

V

valid [3] 21/20

 41/14 41/20

vast [1] 51/20

vehement [1] 

 15/3

venue [1] 25/18

versus [6] 2/3

 24/2 26/22 27/4

 28/4 38/7

via [1] 52/15

vicinity [2] 34/23

 34/23

video [1] 3/3

vindicate [1] 

 41/16

vindicated [1] 

 21/1

violation [2] 57/3

 57/3

violations [2] 

 21/1 41/18

volume [3] 30/8

 44/22 48/17

volumes [1] 

 11/14

vs [1] 1/5

W

wade [1] 17/16

waiver [3] 7/5 7/9

 46/18

walk [1] 32/4

wall [1] 55/14

warrant [26] 12/8

 12/8 18/14 20/11

 21/18 21/21 21/23

 25/2 29/18 30/21

 30/21 31/2 33/23

 34/14 34/17 34/19

 35/3 41/14 41/20

 45/21 47/1 47/12

 49/4 49/9 49/19

 50/15

warranted [2] 

 26/10 50/16

warrants [1] 34/4

Washington [2] 

 48/8 56/2

welcome [2] 

 17/17 37/11

white [2] 1/16

 30/24

willing [1] 56/10

wishes [1] 57/15

wonder [1] 45/22

wondering [1] 

 27/17

world [1] 32/23

worried [1] 15/2

worry [1] 55/19

Y

York [1] 44/13

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