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U.S. Department of Justice 

National Security Division 

Counterintelligence and Export Control Section Washington, D.C. 20530

 October 20, 2022 

By ECF and Courtesy Copy 

Judge Raymond J. Dearie 

United States District Court 

 Eastern District of New York 

225 Cadman Plaza East 

Brooklyn, NY 11202 

Re: Donald J. Trump v. United States of America, Case No. 22-81294-CIV-CANNON – 

Filter A Documents Respecting Document Categorization and Executive Privilege 

 

Dear Judge Dearie: 

In response to Special Master Order ECF 138, the government met with Plaintiff’s counsel on 

certain Filter A documents “to confer and attempt to resolve or narrow the disputes regarding 

claims of executive privilege and designations pursuant to the Presidential Records Act.” Id. at 2. 

The “remaining disputes” regarding those 15 documents (ECF 138, at 1) are listed in the table 

below (17 log reference numbers omitting references 5 and 10 equals 15 documents) – disputes 

to be resolved by the Special Master are highlighted in yellow: 

Document Log 

Reference 

Number

Bates 

Number(s) 

Document 

Categorization 

Privilege Status (Executive Privilege 

Only) 

1 A-001 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege against 

Executive Branch 

2 A-002 to A-003 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

3 A-004 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

Case 9:22-cv-81294-AMC Document 150 Entered on FLSD Docket 10/20/2022 Page 1 of 7
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Document Log 

Reference 

Number

Bates 

Number(s) 

Document 

Categorization 

Privilege Status (Executive Privilege 

Only) 

4 A-005 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

6 A-017 to A-018 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege against 

Executive Branch 

7 A-019 to A-020 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

8 (portion) A-021 to A-022 

and A-025 to A026 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

9 A-029-A-030 Agreed: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

11 A-033 Agreed: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

12 A-036 through 

A040 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

(N.B. Part of document 12 was withheld 

from the government Case Team because 

Plaintiff claims attorney-client privilege and 

work product immunity)

13 A-043 through 

A052 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

(N.B. Part of document 13 was withheld 

from the government Case Team because 

Plaintiff claims attorney-client privilege and 

work product immunity)

14 A-053 Agreed: personal 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

15 A-054 Agreed: personal 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no Executive privilege 

16 A-055 Agreed: personal 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no Executive privilege 

17 A-056-through 

A-058 

Agreed: personal 

records 

Agreed: no claim of Executive Privilege by 

Plaintiff 

Case 9:22-cv-81294-AMC Document 150 Entered on FLSD Docket 10/20/2022 Page 2 of 7
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The balance of this letter provides reasons and authority for why the government believes the 

disputed documents are Presidential records, are not subject to a valid claim of executive 

privilege, or both. We refer to documents by log and Bates numbers and do not reference 

potentially privileged content in order to permit this letter to be filed on the public docket. 

Document Categorization: Presidential vs. personal records – 

Nine Disputes for Report and Recommendation 

Of the 15 documents, the parties agree on the categorization of 6 documents and disagree as to 

the proper categorization of the remaining 9 documents. Plaintiff categorizes those nine 

documents (1, 2, 3, 4, 6, 7, 8, 12, and 13) as personal records citing the Presidential Records Act 

and a district court case: 

Personal: Record designated personal consistent with the Presidential Records Act of 

1978, 44 U.S.C. § 2201 et seq. and Judicial Watch v. NARA, 845 F. Supp 288 (D.D.C. 

2012). 

For its part, the government categorizes those nine documents as Presidential records. 

The nine documents are Presidential records because they are “[1] documentary material . . . 

[2] created or received by the President, the President’s immediate staff, or a unit or individual of 

the Executive Office of the President . . . [3] in the course of conducting activities which relate to 

or have an effect upon the carrying out of the constitutional, statutory, or other official or 

ceremonial duties of the President.” 44 U.S.C. § 2201(2). 

1. The nine documents are “documentary material” (44 U.S.C. § 2201(2)) because the 

Presidential Records Act defines that term broadly to include without limitation “all . 

. . correspondence, memoranda, documents, papers . . . whether in analog, digital, or 

any other form” (id. § 2201(1)). 

2. Those nine documents also appear to have been at least received by the President or a 

member of his staff or the Executive Office of the President. 

3. Lastly, those nine documents appear to have been created or received by Plaintiff “in 

the course of activities which relate to or have an effect upon the carrying out of the 

constitutional, statutory, or other official or ceremonial duties of the President.” Id.

§ 2201(2). 

a. Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with 

supporting materials and relate to the President’s “Power to grant Reprieves 

and Pardons for Offences against the United States, except in Cases of 

Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received 

by Plaintiff in his capacity as the official with authority to grant reprieves and 

pardons, not in his personal capacity. 

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b. Two of the nine documents (1 and 6) relate to immigration initiatives and the 

President’s powers under the Immigration and Nationality Act and other laws 

governing immigration and border control. Although Plaintiff claims that both 

immigration documents 1 and 6 are personal and not Presidential records, he 

inconsistently also asserts Executive Privilege over both documents. 

Executive privilege applies to records of the President’s “constitutional, 

statutory, or other official” duties (44 U.S.C. § 2210(2)), not personal records. 

c. The last of the nine documents (4) is a printed e-mail message from a person 

at one of the military academies addressed to the President in his official 

capacity about the academy’s sports program and its relationship to martial 

spirit. The message relates at a minimum to the “ceremonial duties of the 

President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers. 

The single district court case on which Plaintiff relies, Judicial Watch v. NARA, 845 F. Supp. 2d 

288 (D.D.C. 2012), does not prove that any of the nine documents were “[r]ecord[s] designated 

[as] personal consistent with the Presidential Records Act,” as Plaintiff asserts in his log entries. 

The district court in Judicial Watch held that a third party cannot bring a claim to compel NARA 

to revisit a President’s categorization of records. See 845 F. Supp. 2d at 302. Although the court 

stated that the responsibility to categorize records as Presidential or personal “is left solely to the 

President” during his term of office (id. at 301), neither the district court in Judicial Watch nor 

any other court has suggested that otherwise Presidential records may be rendered personal by 

fiat. Nor has any court held that NARA would be without authority or recourse if a President 

were to designate records that are plainly official government documents as personal records. 

More fundamentally, Plaintiff – who bears the burden of proof – offers no evidence that he in 

fact designated those nine documents (1, 2, 3, 4, 6, 7, 8, 12, and 13) as personal records during 

his term in office. As a result, Plaintiff fails to make even a prima facie case that documents 1, 2, 

3, 4, 6, 7, 8, 12, and 13 are personal records.* 

* Although the government offers its views on the proper categorization of the Filter A 

documents as Presidential or personal records as required by the Order Appointing Special 

Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization 

has no bearing on whether such documents may be reviewed and used for criminal investigative 

purposes and does not dictate whether such documents should be returned to Plaintiff under 

Criminal Rule 41(g). Personal records that are not government property are seized every day for 

use in criminal investigations. And the fact that more than 100 documents bearing classification 

markings were commingled with unclassified and even personal records is important evidence in 

the government’s investigation in this case. 

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Executive Privilege – Four Disputes for Report and Recommendation 

Of the 15 documents, Plaintiff does not assert Executive Privilege over 11 documents. Plaintiff 

asserts Executive Privilege over four documents (1, 6, 15, and 16). In his log entries, Plaintiff 

claims that documents 1 and 6 are pre-decisional and invokes a deliberative-process component 

of Executive Privilege. Plaintiff claims that documents 15 and 16 record communications 

between the President and his advisors and for those documents appears to invoke the 

Presidential communications component of Executive Privilege. 

As stated in its log entries, the government incorporates by reference its submissions on 

Executive Privilege before the district court (ECF 48, at 23-28) and the Eleventh Circuit (Brief of 

the United States, Donald J. Trump v. United States of America, No. 22-13005, at 29-38 (filed 

10/14/2022) (U.S. Br.)). With respect to the four documents, Plaintiff may not assert Executive 

Privilege to withhold those documents from the government, for four reasons. 

First, Plaintiff cannot logically assert Executive Privilege over two of the documents – 15 and 16 

– because the parties agree that those documents are personal and not Presidential records. Only 

official records are subject to assertions of Executive Privilege. 

Second, Plaintiff offers no authority that a former president may assert the deliberative-process 

component of Executive Privilege and thus has no claim to Executive Privilege over documents 

1 and 6. The Supreme Court’s decisions reserving the question whether a former president may 

invoke Executive Privilege were limited to the presidential-communications privilege, not the 

deliberative-process privilege. See Trump v. Thompson, 142 S. Ct. 680, 680 (2022) (Kavanaugh, 

J., respecting denial of application of stay of manage and injunction pending review) (“A former 

President must be able to successfully invoke the Presidential communications privilege for 

communications that occurred during his Presidency, even if the current President does not 

support the privilege claim.”); Nixon v. Administrator of General Services, 433 U.S. 425, 447-49 

(1977) (rejecting assertion of “the privilege of confidentiality of Presidential communications” 

against another Executive Branch component). 

Third, for the reasons and authority stated in the government’s prior submissions (see ECF 48, at 

23-26; U.S. Br. 29-31 (11th Cir.)), Plaintiff may not assert the Executive Branch’s privilege to 

withhold documents from itself. The Special Master flagged that issue in his proposed Case 

Management Plan. The illogic and absence of any authority to invoke Executive Privilege 

against the privilege holder is fatal to Plaintiff’s assertion as to documents 1, 6, 8, 15, and 16. 

Fourth, even if Plaintiff were permitted to assert executive privilege against the Executive 

Branch, that assertion would fail here because the government has a “demonstrated, specific 

need” for this evidence in its ongoing criminal investigation. United States v. Nixon, 418 U.S. 

683, 713 (1974) (see ECF 48, at 26-29; U.S. Br. 31-36 (11th Cir.)).

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Thank you for your consideration. 

Respectfully submitted, 

 

 

 JUAN ANTONIO GONZALEZ 

 UNITED STATES ATTORNEY 

 MATTHEW G. OLSEN 

 Assistant Attorney General 

 By: /s/ 

 JAY I. BRATT 

 Chief 

 JULIE EDELSTEIN 

 Deputy Chief 

 STEPHEN MARZEN 

 Trial Attorney 

 Counterintelligence and Export Control Section 

 National Security Division 

 Department of Justice 

Case 9:22-cv-81294-AMC Document 150 Entered on FLSD Docket 10/20/2022 Page 6 of 7
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CERTIFICATE OF SERVICE 

 

I HEREBY CERTIFY that on October 20, 2022, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on all counsel of record via transmission of Notices of 

Electronic Filing generated by CM/ECF. 

/s/ Julie A. Edelstein 

Julie A. Edelstein 

Deputy Chief 

Counterintelligence and Export Control Section 

National Security Division 

United States Department of Justice 

950 Pennsylvania Avenue, N.W. 

Washington, DC 20530 

Special Bar # A5502949 

Tel.: +1.202.233.0986 

Email: julie.a.edelstein@usdoj.gov 

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