UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION 

CASE NO. 22-CV-81294-CANNON 

DONALD J. TRUMP,

Plaintiff, 

v. 

UNITED STATES OF AMERICA, 

 Defendant. 

________________________________/ 

THE UNITED STATES’ REPLY IN SUPPORT OF ITS MOTION TO STAY 

PENDING APPEAL

The United States’ motion for a stay pending appeal of this Court’s September 5, 2022 

Order, Docket Entries (“D.E.”) 69, 64, seeks limited but critical relief. The government seeks 

a stay only as to a discrete set of just over 100 records marked as classified—that is, records 

that were specifically sought by a prior grand jury subpoena, whose unauthorized retention 

may constitute a crime, 18 U.S.C. § 793, and with markings signifying that their unauthorized 

disclosure “reasonably could be expected to result in damage to the national security,” 

including “exceptionally grave damage,” Exec. Order 13526 §§ 1.1(4), 1.2(1) (Dec. 29, 2009).1

The government’s stay motion demonstrates that the government is likely to succeed 

on the merits because Plaintiff cannot plausibly establish any property interest in or privilege 

1

 Plaintiff has characterized the government’s criminal investigation as a “document storage 

dispute” or an “overdue library book scenario.” D.E. 84 at 1; 9/1/22 Hrg. Tr. at 31:20-21. In 

doing so, Plaintiff has not addressed the potential harms that could result from mishandling 

classified information or the strict requirements imposed by law for handling such materials. 

See 32 C.F.R. § 2001.43 (describing detailed requirements for the storage of TOP SECRET 

information, including approved vaults, alarm systems, and construction specifications). 

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claim as to the seized records marked as classified, that the government and the public are 

irreparably harmed while the Court’s Order as to those records remains in effect, and that a 

partial stay would impose no cognizable harm on Plaintiff. Plaintiff’s Response, D.E. 84, 

largely ignores those showings. Instead, Plaintiff principally seeks to raise questions about the 

classification status of the records and their categorization under the Presidential Records Act 

(“PRA”). But Plaintiff does not actually assert—much less provide any evidence—that any 

of the seized records bearing classification markings have been declassified. More 

importantly, the issues Plaintiff attempts to raise are ultimately irrelevant. Even if Plaintiff 

had declassified these records, and even if he somehow had categorized them as his 

“personal” records for purposes of the PRA—neither of which has been shown—nothing in 

the PRA or any other source of law establishes a plausible claim of privilege or any other 

justification for an injunction restricting the government’s review and use of records at the 

center of an ongoing criminal and national security investigation. And nothing in Plaintiff’s 

Response rebuts the compelling public interest in granting the limited stay the government 

seeks. 

DISCUSSION 

I. The Government Is Likely to Succeed on the Merits 

First, Plaintiff has failed to rebut the government’s showing that the Court lacks 

equitable jurisdiction as to seized records bearing classification markings because Plaintiff 

categorically has no “property” interest in those records and no “need for” their return. D.E. 

69 at 6-7 (citing Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975)). Plaintiff instead 

references other seized records that contain personal information or could be subject to 

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attorney-client privilege, none of which are at issue in this stay motion. D.E. 84 at 7-8. As to 

the records marked as classified, Plaintiff asserts that the government has not “proven” their 

classification status. Id. at 8. But even if Plaintiff had declassified any of these records while 

he was President—a proposition that Plaintiff does not specifically assert in any of his filings 

in these proceedings, in a sworn declaration, or through any evidence—any record bearing 

classification markings was necessarily created by the government and, therefore, is not 

Plaintiff’s personal property. Furthermore, although Plaintiff observes that the PRA generally 

entitles him to access Presidential records created during his tenure, see id.; 44 U.S.C. § 

2205(1), (3) (records “in the custody of the Archivist” “shall be available” to a former 

President or his designee), the PRA does not establish that a former President has any 

property right in Presidential records. To the contrary, it makes clear that “[t]he United 

States” has “complete ownership, possession, and control” of them. 44 U.S.C. § 2202. 

Plaintiff thus has no plausible property interest that would justify compelling this discrete set 

of records to be returned to him. The government is thus likely to succeed on jurisdictional 

grounds alone. 

Second, Plaintiff has no viable claim of privilege as to the records bearing classification 

markings. He does not contest that he lacks a viable personal attorney-client privilege claim 

with regard to records marked as classified, because such records would not contain 

communications between Plaintiff and his personal attorneys. See D.E. 69 at 8. And Plaintiff 

offers no response to the government’s multiple arguments demonstrating that he cannot 

plausibly assert executive privilege to prevent the Executive Branch itself from reviewing 

records that Executive Branch officials previously marked as classified. The government 

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explained that Nixon v. Administrator of General Services, 433 U.S. 425 (1977) (“Nixon v. GSA”), 

precludes a successful assertion of executive privilege against the Executive Branch; that any 

assertion here would in any event be overcome under United States v. Nixon, 418 U.S. 683 

(1974), given the government’s compelling need for these records, the unauthorized retention 

of which is the very subject matter of the government’s criminal investigation; that any claim 

of privilege over these records is further foreclosed because the Constitution vests the 

incumbent President with the authority to control access to classified information; and that 

Plaintiff failed to raise any purported executive privilege claims when responding to a grand 

jury subpoena for all documents in his possession bearing classification markings. D.E. 69 at 

8-12. Plaintiff does not address any of those arguments. 

Instead, Plaintiff notes only that this Court “expressed skepticism” about the 

government’s executive privilege arguments in its prior Order. D.E. 84 at 10. But the Court’s 

observations focused on whether a former President is entirely foreclosed from asserting 

executive privilege against the Executive Branch. D.E. 64 at 17. The Court did not address 

the government’s arguments specifically establishing that no plausible assertion of privilege 

could bar the review by the Executive Branch of the discrete set of seized records bearing 

classification markings in the context of an ongoing criminal and national security 

investigation. In any event, it is Plaintiff—not the Court and not a special master—who would 

need to make an assertion of executive privilege and supply reasons supporting that assertion. 

He has provided none. 

Plaintiff’s attempts to change the subject by holding out the possibility that he could

have declassified some of the seized records and/or that he could have designated them as 

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“personal” records, D.E. 84 at 11-15, fare no better. As already noted, Plaintiff has now filed 

multiple lengthy submissions with the Court that stop short of asserting that he in fact took 

any of these actions with respect to any of the seized records, including those at issue in the 

stay motion. In light of the classification markings, official cover sheets, and other indicia of 

classification attendant to these materials, see, e.g., D.E. 48-1, Attachment F, such possibilities 

should not be given weight absent Plaintiff’s putting forward competent evidence. 

In any event, even if Plaintiff had declassified any of the approximately 100 seized 

records bearing classification markings while he was still in office, the government’s 

“demonstrated, specific need” for those records, United States v. Nixon, 418 U.S. at 713, would 

easily overcome any asserted claim of privilege. For obvious reasons, the Intelligence 

Community (“IC”) would have a compelling need to understand which formerly-classified 

records have now been declassified, why and how they were declassified, and the impact of 

any such declassification, including on the IC’s protection of its sources and methods and on 

the classification status of related records or information. The Department of Justice (“DOJ”) 

and Federal Bureau of Investigation (“FBI”) would also have a compelling need to review 

any purportedly declassified records as part of the government’s investigation into the 

adequacy of the response to the May 2022 grand jury subpoena, which sought “[a]ny and all 

documents or writings in the custody or control of Donald J. Trump and/or the Office of 

Donald J. Trump bearing classification markings.” D.E. 48-1 Attachment C (emphasis added). 

Furthermore, the government would need to consider the records’ prior declassification as 

relates to the application of 18 U.S.C. § 793. See D.E. 69 at 14 (explaining the relevance of 

classification status in such matters). 

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Plaintiff’s suggestion that he “may have categorized certain of the seized materials as 

personal [records] during his presidency” pursuant to the PRA, D.E. 84 at 15, if true, would 

only supply another reason that he cannot assert executive privilege with regard to those 

records. If Plaintiff truly means to suggest that, while President, he chose to categorize records 

with markings such as “SECRET” and “TOP SECRET” as his personal records for purposes 

of the PRA, then he cannot assert that the very same records are protected by executive 

privilege—i.e., that they are “Presidential communications” made in furtherance of the 

“performance of his official duties.” Nixon v. GSA, 433 U.S. at 447, 456; see 44 U.S.C. 

§ 2201(3) (defining “personal records” as records “of a purely private or nonpublic character 

which do not relate to or have an effect upon the carrying out of the constitutional, statutory, 

or other official or ceremonial duties of the President”). In any event, whether Plaintiff 

declared documents with classification markings to be his “personal” records for purposes of 

the PRA has no bearing on the government’s compelling need to review them, both for 

national security purposes and as part of its investigation into the potentially unlawful 

retention of national defense information.2

2

 Plaintiff’s characterization of the discretion the PRA provides the President to categorize 

records as “Presidential” or “personal,” D.E. 84 at 14-15 (citing Judicial Watch v. National 

Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 2012)), is thus irrelevant here. 

In any event, the district court decision on which Plaintiff relies did not concern classified 

records and does not support his assertion that a court must accept a former President’s claim 

that records that indisputably qualify as Presidential records under the PRA are instead 

personal records. Instead, the court in Judicial Watch concluded that it could not compel the 

National Archives and Records Administration to revisit a President’s decision about such a 

categorization. 845 F. Supp. 2d at 300-301. More fundamentally, the district court’s analysis 

in Judicial Watch has no bearing on the application of criminal law regarding unauthorized 

retention of national defense information, unauthorized removal of government documents, 

or obstruction of justice. 18 U.S.C. §§ 793, 2071, 1519. 

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More generally, Plaintiff’s Response disregards this Court’s acknowledgement of its 

“limited power in this domain” involving the exercise of equitable jurisdiction in connection 

with an ongoing criminal investigation. D.E. 64 at 8. The Court ordered the appointment of 

a special master solely to “manage assertions of privilege and make recommendations 

thereon, and evaluate claims for return of property.” Id. at 23. The Court did not—and could 

not—appoint a special master to exercise roving “supervisory authority” over the 

government’s ongoing criminal investigation, contra D.E. 84 at 4, or to adjudicate matters 

ultimately irrelevant to Plaintiff’s potential privilege claims, such as whether Plaintiff might 

have declassified seized documents that bear classification markings or whether Plaintiff 

might have designated those documents as his “personal” records for purposes of the PRA. 

Because Plaintiff cannot plausibly assert executive privilege (or attorney-client privilege, see 

supra p. 3) as to any seized records bearing classification markings, the Court should not 

enjoin the government’s use of those records or order those records reviewed by a special 

master pending the government’s appeal. 

II. The Government and the Public Will Suffer Irreparable Harm Absent a Stay 

The Court’s injunction against the government’s review of seized records bearing 

classification markings for purposes of its criminal investigation has caused and will continue 

to cause irreparable harm. As the government has explained, the IC’s intelligence 

classification review and national security assessment—which the Court sought to allow to 

continue in recognition of the vital interests at stake—are closely linked to its criminal 

investigation, and therefore cannot proceed effectively while the injunction remains in place. 

D.E. 69 at 12-16; see generally D.E. 69-1 (Declaration of Alan E. Kohler, Jr.). Plaintiff suggests 

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various potential methods for drawing a distinction, such as by allowing the government to 

use the records for “forward looking” assessments regarding the protection of “vital national 

interests” but not “backwards looking” inquiries into violations of law, D.E. 84 at 15-16, or 

by distinguishing between the government’s subjective “purpose” for reviewing or using the 

records, id. at 17. Plaintiff thus implicitly acknowledges that the government and the public 

would be irreparably harmed by an injunction that bars the effective conduct of a classification 

review and national security assessment. But as the government has demonstrated, its 

“forward looking” mission of protecting national security necessarily requires it to understand 

the extent to which classified information may have recently been compromised. D.E. 69 at 

14-15. And to the extent the Court’s injunction were to turn on the subjective “purpose” 

motivating individual government personnel, such an injunction could be subject to serious 

challenge for failure to “state its terms specifically” and to “describe in reasonable detail . . . 

the act or acts restrained.” Fed. R. Civ. P. 65(d)(1). In attempting to draw what are ultimately 

unworkable distinctions, Plaintiff only underscores that the government’s national security 

and criminal investigative missions are overlapping and mutually reinforcing. 

Furthermore, even if the IC, which includes the FBI, were permitted to resume its 

classification review and national security assessment in some limited manner, Plaintiff fails 

to address DOJ’s and the FBI’s inability, under the Court’s injunction, to use the seized 

records to investigate whether or to what extent the seized records were accessed by 

unauthorized individuals or whether other classified records remain missing. D.E. 69 at 14-

17. Those are criminal investigative functions, and the government is irreparably harmed 

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while it is enjoined from using the seized records bearing classification markings for those 

purposes. 

For that and other reasons, the delay of the government’s criminal investigation 

constitutes its own irreparable harm. The government and the public unquestionably have an 

interest in the timely enforcement of criminal laws, particularly those involving the protection 

of highly sensitive information, and especially where, as here, there may have been efforts to 

obstruct its investigation. The government’s ability to perform other investigative tasks that do 

not require its review or use of the records marked as classified does not “refute[]” this 

irreparable harm. D.E. 84 at 18. These records are at the core of the government’s 

investigation, and the government’s inability to review and use them significantly constrains 

its investigation. The compelled disclosure of records marked as classified to a special master 

further harms the Executive Branch’s interest in limiting access to such materials absent any 

valid purpose served by their review. See United States v. Reynolds, 345 U.S. 1, 10-11 (1952) 

(courts should be cautious before requiring judicial review, even ex parte and in camera, of 

documents whose disclosure would jeopardize national security). 

Finally, Plaintiff’s submissions to the Court indicate that Plaintiff contemplates a 

prolonged 90-day review period by the special master. Thus, even assuming that a special 

master begins that review immediately, the review would not be complete until December 

under Plaintiff’s proposed timeline. All the while, the Intelligence Community would (at best) 

be limited in its ability to address and fully mitigate any national security risks presented by 

the storage and handling of the classified records at issue here, and DOJ and the FBI would 

be unable to perform critical parts of their criminal investigatory functions. 

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III. Plaintiff Has Failed to Establish Any Cognizable Harm

Plaintiff has not described any cognizable harm that he would incur from a partial 

stay. He states only that “enhanced vigilance” in this investigation will serve a public interest 

in fairness and transparency, going so far as to suggest that this investigation “must be 

conducted in public view.” D.E. 84 at 19-20. But the public is best served by evenhanded 

adherence to established principles of civil and criminal procedure, regardless of the identity 

of the parties or the degree of public attention. Here, the seized records bearing classification 

markings are the government’s own documents and are evidence obtained pursuant to a duly 

authorized search warrant in the course of a criminal investigation. The government and the 

public have a compelling interest in that investigation continuing. And Plaintiff is not entitled 

to restrict the government’s investigation pending a review of these records for privilege claims 

that cannot prevail. 

Conclusion 

The Court should stay its September 5, 2022 Order pending appeal to the extent the 

Order (1) enjoins the further review and use for criminal investigative purposes of records 

bearing classification markings and (2) requires the government to disclose those classified 

records to a special master. 

Respectfully submitted, 

 /s Juan Antonio Gonzalez 

 JUAN ANTONIO GONZALEZ 

 UNITED STATES ATTORNEY 

 Florida Bar No. 897388 

 99 NE 4th Street, 8th Floor 

 Miami, FL 33132 

 Tel: 305-961-9001 

Case 9:22-cv-81294-AMC Document 88 Entered on FLSD Docket 09/13/2022 Page 10 of 12
 Email: juan.antonio.gonzalez@usdoj.gov 

 MATTHEW G. OLSEN 

 Assistant Attorney General 

 National Security Division 

 

 /s Jay I. Bratt 

 JAY I. BRATT 

 CHIEF 

 Counterintelligence and Export Control 

 Section 

 National Security Division 

 950 Pennsylvania Avenue, NW 

 Washington, D.C. 20530 

 Illinois Bar No. 6187361 

 Tel: 202-233-0986 

 Email: jay.bratt2@usdoj.gov 

Case 9:22-cv-81294-AMC Document 88 Entered on FLSD Docket 09/13/2022 Page 11 of 12
CERTIFICATE OF SERVICE 

 

I HEREBY CERTIFY that on September 13, 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/ Juan Antonio Gonzalez

Juan Antonio Gonzalez 

United States Attorney 

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