UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO. 22-81294-CIV-CANNON

DONALD J. TRUMP, 

Plaintiff, 

v. 

UNITED STATES OF AMERICA, 

Defendant. 

____________________________________/

DONALD J. TRUMP’S RESPONSE IN 

OPPOSITION TO THE UNITED STATES’ 

MOTION FOR A PARTIAL STAY PENDING APPEAL 

I. INTRODUCTION

This investigation of the 45th President of the United States is both 

unprecedented and misguided. In what at its core is a document storage dispute that

has spiraled out of control, the Government wrongfully seeks to criminalize the 

possession by the 45th President of his own Presidential and personal records. By 

way of its Motion [ECF No. 69], the Government now seeks to limit the scope of any 

review of its investigative conduct and presuppose the outcome, at least as regards to 

what it deems are “classified records.” However, the Court’s Order [ECF No. 64] is a 

sensible preliminary step towards restoring order from chaos. The Government 

should therefore not be permitted to skip the process and proceed straight to a 

preordained conclusion.

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The Government’s request with regard to this Court’s Order is two-fold:

Specifically, the [G]overnment seeks a stay to the extent the Order (1) 

enjoins the further review and use for criminal investigative purposes of 

records bearing classification markings that were recovered pursuant to 

a court-authorized search warrant and (2) requires the [G]overnment to 

disclose those classified records to a special master for review.

[ECF No. 69 at 1].1 This request demonstrates the Government has misinterpreted 

the Order as a prohibition on conducting a national security assessment. That 

reading is, however, misplaced as the Court made clear such assessment may 

proceed.

The Government generally points to the alleged urgent need to conduct a risk 

assessment of possible unauthorized disclosure of purported “classified records.” But 

there is no indication any purported “classified records” were disclosed to anyone. 

Indeed, it appears such “classified records,” along with the other seized materials, 

were principally located in storage boxes in a locked room at Mar-a-Lago, a secure, 

controlled access compound utilized regularly to conduct the official business of the 

1 The Government is apparently not concerned with unauthorized leaks regarding 

the contents of the purported “classified records,” see, e.g., Devlin Barrett and Carol 

D. Leonnig, Material on foreign nation’s nuclear capabilities seized at Trump’s Mara-Lago, WASH. POST (Sept. 6, 2022), https://www.washingtonpost.com/nationalsecurity/2022/09/06/trump-nuclear-documents/, and would presumably be prepared 

to share all such records publicly in any future jury trial. However, the Government 

advances the untenable position in its Motion that the secure review by a Court 

appointed and supervised special master under controlled access conditions is 

somehow problematic and poses a risk to national security.

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United States during the Trump Presidency, which to this day is monitored by the 

United States Secret Service. 2 

Moreover, the ultimate disposition of all the “classified records,” and likely 

most of the seized materials, is indisputably governed exclusively by the provisions 

of the Presidential Records Act (“PRA”). See 44 U.S.C. §§ 2201, et seq. The PRA 

accords any President extraordinary discretion to categorize all his or her records as 

either Presidential or personal records, and established case law provides for very 

limited judicial oversight over such categorization. The PRA further contains no 

provision authorizing or allowing for any criminal enforcement. Rather, disputes 

regarding the disposition of any Presidential record are to be resolved between such

President and the National Archives and Records Administration (“NARA”). Thus, at 

best, the Government might ultimately be able to establish certain Presidential 

records should be returned to NARA. What is clear regarding all of the seized 

materials is that they belong with either President Trump (as his personal property 

to be returned pursuant to Rule 41(g)) or with NARA, but not with the Department 

of Justice. 

However, it is not even possible for this Court, or anyone else for that matter, 

to make any determination as to which documents and other items belong where and 

2 There was seemingly no similar sense of urgency or imminent threat to national 

security associated with the purported “classified records” contained in the fifteen

boxes of materials President Trump voluntarily turned over in January 2022, even 

though such records formed the alleged basis for the institution of the current 

criminal investigation. Likewise, there was no similar sense of urgency or imminent 

threat associated with the “classified records” President Trump’s counsel voluntarily 

turned over on June 3, 2022.

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with whom without first conducting a thoughtful, organized review. Recognizing this, 

the Court exercised its equitable jurisdiction and inherent supervisory authority to 

“ensure at least the appearance of fairness and integrity under the extraordinary 

circumstances presented.” Order [ECF No. 64 at 1]. The Government now advances 

the same arguments previously rejected in an attempt to persuade the Court to 

reconsider. For several reasons, the Government has not demonstrated in its Motion 

any entitlement to relief.

First, the Government’s position incorrectly presumes the outcome—that its

separation of these documents is inviolable and not subject to question by this Court 

or anyone else. Second, the Government’s stance assumes that if a document has a 

classification marking, it remains classified irrespective of any actions taken during 

President Trump's term in office. Third, as noted above, the Government continues 

to ignore the significance of the PRA. Indeed, if any seized documents (including any 

purported “classified records”) are Presidential records, President Trump (or his 

designee, including a neutral designee such as a special master) has an absolute right 

of access to same under the PRA. 44 U.S.C. § 2205(3). Accordingly, President Trump 

(and, by extension, a requested special master) cannot be denied access to those 

documents.

In addition, the Government’s claims of “irreparable harm” to the Government 

“and the public” [ECF No. 69 at 2] appear exaggerated. In seeking the extraordinary 

relief of this Court staying its own order, the Government once again brushes off any 

measure of judicial involvement. The Government argues that the Intelligence 

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Community review of documents now solely in the FBI’s possession cannot withstand 

a brief pause. Moreover, the Government contends that the FBI and ODNI, and their 

personnel, are so inseparable they are incapable of having agents outside the criminal 

case participate in the ODNI-led investigation. This convenient, and belated, claim 

by the Government relative to enjoining the criminal team’s access to these 

documents only arises because the FBI concedes [ECF No. 69-1] the Intelligence 

Community review is actually just another facet of its criminal investigation. 

[See ECF No. 69-1]. Indeed, the declaration that “the IC assessments necessarily will 

inform the FBI’s criminal investigation,” id. at 4, effectively concedes the intelligence 

review is in fact part of that criminal investigation.3

In short, the merits of this matter do not support staying the Court’s Order 

pending the Government’s appeal. Accordingly, and in light of the remaining stay 

factors, the Court should deny the Government’s motion.

II. APPLICABLE LAW

A stay pending appeal is an “extraordinary” remedy for a court to invoke, 

Williams v. Zbaraz, 442. U.S. 1309, 1311 (1979), and the applicant bears an

“especially heavy” burden of proving that such relief is warranted, Packwood v. 

Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994). To establish entitlement 

to a stay pending appeal, the Government must: (1) make a strong showing that it is 

3 Of course, as the Order contemplates, to the extent there is any legitimate 

national security interest at issue, the Government is free to proceed. Likewise, 

President Trump has no interest in impeding any action which advances the national 

security interests of the United States.

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likely to succeed on the merits; (2) demonstrate irreparable injury absent a stay; (3) 

demonstrate an absence of substantial injury to the other parties interested in the 

proceeding; and (4) show that public interest supports the stay. Nken v. Holder, 556 

U.S. 418, 426 (2009). “A stay is an ‘intrusion into the ordinary processes of 

administration and judicial review,’ and accordingly ‘is not a matter of right, even if 

irreparable injury might otherwise result to the appellant[.]’” Id. (citations omitted) 

(quoting Va. Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (per 

curiam), and Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926)). The first 

two prongs are the “most critical”—the likelihood of success must be “better than 

negligible” and “simply showing some possibility of irreparable injury fails to satisfy 

the second factor.” Id. at 434–35 (citations and quotations omitted); see also Ruiz v. 

Estelle, 650 F.2d 555, 565-66 (5th Cir. 1981) (“[I]f the balance of equities . . . is not 

heavily tilted in the movant’s favor, the movant must then make a more substantial 

showing of likelihood of success on the merits in order to obtain a stay pending 

appeal.”).

III. PRESIDENT TRUMP IS LIKELY TO SUCCEED ON THE MERITS

The Government’s Motion and appeal appear to presume the outcome of its 

review of the materials seized from President Trump. Critically, though, the Court’s 

Order is not a resolution of the ultimate merits of any argument raised by either 

President Trump or the Government. Rather, it merely directs the appointment of a 

neutral party to review the seized materials and, in conjunction, temporarily, and 

reasonably, precludes further use of the seized materials in the Government’s 

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criminal investigation while that neutral review is ongoing. The Government is not 

likely to succeed on the merits of its appeal—even with respect to any subset of 

documents—because the Court reasonably exercised its equitable jurisdiction in 

adopting these appropriate measures.

A. The Court has the power to appoint a special master and enjoin 

the Government’s review.

This Court was correct in exercising its equitable jurisdiction. See Richey v. 

Smith, 515 F.2d 1239 (5th Cir. 1975). In Richey, the case upon which this Court relied 

in its Order, the former Fifth Circuit set forth a series of factors to consider in relation 

to the exercise of equitable jurisdiction. See id. at 1245. The non-exhaustive list of 

factors include: (1) whether the government displayed a callous disregard for the 

movant’s constitutional rights; (2) whether the movant has an individual interest in 

and need for the seized property; (3) whether the movant would be irreparably injured 

by denial of the return of the seized property; and (4) whether the movant otherwise 

has an adequate remedy at law. Id. In reviewing President Trump’s Motion for 

Judicial Oversight, this Court rightly found that while there has not yet been a

demonstration of a callous disregard for President Trump’s constitutional rights to 

date, the remaining three factors weighed in favor of exercising jurisdiction. [ECF 

No. 64 at 8-12].

President Trump clearly has an individual interest in and need for the seized 

property. The record reflects the material seized from President Trump’s home 

includes not just “personal effects without evidentiary value” but also approximately 

five hundred pages of material that is likely subject to attorney-client privilege, as 

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well as medical documents, and tax and accounting information. [ECF Nos. 40-2, 48]. 

The Government contends that President Trump can have no such interest in the 

purported "classified records." But, again, the Government has not proven these 

records remain classified. That issue is to be determined later. 

Moreover, under the PRA, President Trump has specified rights to restrict 

access to his Presidential records, 44 U.S.C. § 2204, and an absolute right to access 

(or have his designee access) those Presidential records, 44 U.S.C. § 2205(3). These 

rights accord President Trump a sufficient interest in all of the seized materials. 

Indeed, as developed below, President Trump's categorization of records during his 

term was within his sole discretion.

There is also a risk of irreparable injury to President Trump if the documents 

are not first reviewed by a neutral third party. As correctly stated by this Court, 

President Trump “faces an unquantifiable potential harm by way of improper 

disclosure of sensitive information to the public.” [ECF No. 64 at 9-10]. This is 

evidenced by various media reports in recent days regarding the contents of

purportedly “classified” documents seized by the Government.4 Irreparable injury 

could most certainly occur if the Government were permitted to improperly use the 

documents seized. As this Court aptly stated: 

As a function of [President Trump’s] former position as President of the 

United States, the stigma associated with the subject seizure is in a 

league of its own. A future indictment, based to any degree on property 

that ought to be returned, would result in reputational harm of a 

decidedly different order of magnitude. 

4 See Barret and Leonnig, supra note 1.

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[ECF No. 64 at 10].

Finally, President Trump has no alternative adequate remedy at law. This 

Court correctly determined that “without Rule 41(g), [President Trump] would have 

no legal means of seeking the return of his property for the time being and no 

knowledge of when other relief might become available.” [ECF No. 64 at 10-11]. 

The Government claims this Court cannot enjoin use of the documents the 

Government has determined are classified. [ECF No. 69 at 5-8]. Therefore, the 

argument goes, as President Trump has no right to have the documents returned to 

him—because the Government has unilaterally determined they are classified—the 

Government should be permitted to continue to use them, in conjunction with the 

intelligence communities, to build a criminal case against him. 

However, there still remains a disagreement as to the classification status of 

the documents. The Government’s position therefore assumes a fact not yet 

established. This Court’s Order exercising jurisdiction did not make findings as to 

the classification status of any documents. Further, whether it was lawful for the 

Government to seize those documents has yet to be determined by a court of 

competent jurisdiction. But that ultimate determination is an issue separate from 

this Court’s Order and whether a stay pending appeal is necessary.5 

5 Despite the Government’s attempts to paint the ruling as a finding on the 

substantive merits of President Trump’s claim, this Court noted the limits of its 

Order:

The Court pauses briefly to emphasize the limits of this 

determination. [President Trump] ultimately may not be entitled 

to return of much of the seized property or to prevail on his 

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In summary, this Court’s decision to temporarily enjoin the Government from 

reviewing the seized documents for criminal investigative purposes pending the 

special master’s review was warranted so that all the seized materials may be 

appropriately reviewed and categorized.

B. Appointment of a Special Master is a necessary and prudent step 

to preserve the integrity of the process.

This Court has provided more than adequate reasoning as to why a special 

master is needed to further review the documents in question. [ECF No. 64 at 14-

19]. A special master is not an agent for either President Trump or the Government. 

The very purpose of a special master is to serve as a neutral third party, with 

appropriate authorization, reviewing documents to facilitate resolution of the parties’ 

disagreements. In opposing any neutral review of the seized materials, the 

Government seeks to block a reasonable first step towards restoring order from chaos

and increasing public confidence in the integrity of the process.

The Government also continues to assert that President Trump is not 

permitted to claim executive privilege of documents in the custody of the Executive 

Branch. [ECF No. 69 at 8-12]. But the Court already expressed skepticism with the 

Government’s conclusory assertions regarding executive privilege. [See ECF No. 64 

anticipated claims of privilege. That inquiry remains for another 

day. For now, the circumstances surrounding the seizure in this 

case and the associated need for adequate procedural safeguards 

are sufficiently compelling to at least get [President Trump] past 

the courthouse doors.

[ECF No. 64 at 12].

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at 16–18]. The Government further noted to this Court that the Privilege Review 

Team has already conducted the necessary review to separate privileged documents 

from its investigation. [See ECF No. 64 at 14]. Notably, however, this Court correctly 

pointed out that the flaws in the Privilege Review Team’s processes—even if 

inadvertent—call into question the adequacy of its review. [See ECF No. 64 at 15-

18].6 Considering this, the Court determined that “these unprecedented 

circumstances call for a brief pause to allow for neutral, third-party review to ensure 

a just process with adequate safeguards.” [ECF No. 64 at 23]. 

C. The President had the power to declassify documents.

The Government does not contest—indeed, it concedes—that the President has 

broad authority governing classification of, and access to, classified documents. [ECF 

No. 69 at 10, 18 (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988))]. In fact, 

the Government advocates that “the protection of classified information must be 

committed to the broad discretion of the agency responsible, and this must include 

broad discretion to determine who may have access to it.” [ECF No. 69 at 18 (quoting 

Egan, 484 U.S. at 529)]. Congress provided certain parameters for controlling 

classified information but primarily delegated to the President how to regulate 

6 Specifically, the Court observed:

As reflected in the Privilege Review Team’s Report, the Investigative 

Team already has been exposed to potentially privileged material. . . .

[T]he Privilege Review Team’s Report references at least two instances 

in which members of the Investigative Team were exposed to material 

that was then delivered to the Privilege Review Team and, following 

another review, designated as potentially privileged material. 

[ECF No. 64 at 15 (citing ECF No. 40 at 6)].

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classified information. 50 U.S.C. § 3161. At the same time, Congress exempted the 

President from complying with such requirements. See id. § 3163 (“Except as 

otherwise specifically provided, the provisions of this subchapter shall not apply to 

the President . . .”). 

President Obama enacted the current Executive Order prescribing the 

parameters for controlling classified information in 2009. See Exec. Order 13526 (Dec. 

29, 2009). That Executive Order, which controlled during President Trump’s term in 

office, designates the President as an original classification authority. See id.

§ 1.3(a)(1). In turn, the Executive Order grants authority to declassify information to 

either the official who originally classified the information or that individual’s 

supervisors—necessarily including the President. § 3.1(b)(1), (3). Thus, assuming the 

Executive Order could even apply to constrain a President, cf. 50 U.S.C. § 3163, the 

President enjoys absolute authority under the Executive Order to declassify any 

information. There is no legitimate contention that the Chief Executive’s 

declassification of documents requires approval of bureaucratic components of the 

executive branch. Yet, the Government apparently contends that President Trump, 

who had full authority to declassify documents, “willfully” retained classified 

information in violation of the law. See 18 U.S.C. § 793(e); [ECF No. 69 at 9].7

Moreover, the Government seeks to preclude any opportunity for consideration of this 

issue.

7 Of course, classified or declassified, the documents remain either Presidential 

records or personal records under the PRA. 

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D. A former President has an unfettered right to access 

Presidential records.

Pursuant to the PRA, a former President has an unfettered right of access to 

his Presidential records even though he may not “own” them. See 44 U.S.C. § 2205(3). 

Thus, contrary to the premise behind the Government’s “criminal” investigation, the 

determination of whether a former President timely provided documents to the 

National Archives and Records Administration is a civil matter governed by the PRA. 

All government records (classified or otherwise) fall into two basic categories, 

either under the PRA or the Federal Records Act (“FRA”). “The FRA defines a class 

of materials that are federal records subject to its provisions, and the PRA describes 

another, mutually exclusive set of materials that are subject to a different, less 

rigorous regime. In other words, no individual record can be subject to both statutes 

because their provisions are inconsistent." Armstrong v. Exec. Office of the President, 

1 F. 3d 1274, 1293 (D.C. Cir. 1993). 

The PRA further distinguishes records as either Presidential or personal. 44 

U.S.C. § 2201. Presidential records are defined as:

documentary materials, or any reasonably segregable portion thereof, 

created or received by the President, the President's immediate staff, or 

a unit or individual of the Executive Office of the President whose 

function is to advise or assist the President, 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). The PRA expressly excludes personal records from the definition 

of Presidential records. See id. § 2201(2)(B). Personal records are defined as 

“documentary materials, or any reasonably segregable portion therof, [sic] of a purely 

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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.” Id. § 2201(3). 

The PRA thus “distinguishes Presidential records from ‘personal records’” and 

“requires that all materials produced or received by the President, ‘to the extent 

practicable, be categorized as Presidential records or personal records upon their 

creation or receipt and be filed separately.’” Jud. Watch, Inc. v. Nat’l Archives & Recs. 

Admin., 845 F. Supp. 2d 288, 291 (D.D.C. 2012) (quoting 44 U.S.C. § § 2203(b)). “The 

categorization of the records during the Presidency controls what happens 

next . . . . The statute assigns the Archivist no role with respect to personal records 

once the Presidency concludes.” Id. (emphasis added). “The PRA contains no provision 

obligating or even permitting the Archivist to assume control over records that the 

President ‘categorized’ and ‘filed separately’ as personal records. At the conclusion of 

the President’s term, the Archivist only ‘assumes responsibility for the Presidential 

records.” Id. (quoting 44 U.S.C. § 2203(f)(1)). “[T]he PRA does not confer any 

mandatory or even discretionary authority on the Archivist to classify records. Under 

the statute, this responsibility is left solely to the President.” Id. at 301 (describing 

categorization decision by former President Clinton as not within the discretion of 

the Archivist as the subject materials “were not provided to the Archives at” the end 

of the Clinton presidency).

Critically, the former President has sole discretion to classify a record as 

personal or Presidential. See Jud. Watch, Inc., 845 F. Supp. 2d at 301 (“Under the 

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statute, this responsibility is left solely to the President.”). The power of the Archivist 

is not greater than that of the President. Specifically, the PRA states “the Archivist 

of the United States shall assume responsibility for the custody, control, and 

preservation of, and access to, the Presidential records of that President.” 44 U.S.C. 

§ 2203(f)(1). This section should not be interpreted as weakening a President’s 

authority under the Act. See Jud. Watch, Inc., 845 F. Supp. 2d at 300 (“[T]he plain 

language of section 2203(f) of the PRA does not say . . . that the Archivist must assume

custody and control of all materials that fall within the definition of Presidential 

records.”). 

Accordingly, all of the records at issue in the Government’s motion fall into two 

categories: (1) Presidential records, governed exclusively by the Presidential Records 

Act; and (2) personal records, the determination of which was in President Trump’s 

discretion. See id. To the extent President Trump may have categorized certain of the 

seized materials as personal during his presidency, any disagreement as to that 

categorization is to be resolved under the PRA and cannot possibly form the basis for 

any criminal prosecution.

IV. THE GOVERNMENT WILL NOT SUFFER IRREPARABLE HARM

A. The Government ignores the distinction between an assessment 

of national security, which is prospective, and a criminal 

investigation, which is retrospective. 

The Government conflates two related, yet distinct issues: (1) potential damage 

to national security from allegedly mishandling classified information; and (2) 

criminal repercussions for allegedly mishandling classified information. The former 

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is forward looking—asking how the Government protects vital national interests on 

an ongoing basis through an assessment of whether national security information or 

sources have been compromised.8 The latter is backwards looking—assessing 

whether national security information was handled in a manner contrary to law. 

Certainly, it may be easier to perform these two functions in tandem. But the 

Government has wholly failed to show that these functions must be performed 

concurrently. Moreover, the Government incorrectly portrays the Court’s Order as 

categorically prohibiting any action that may yield information related to any 

criminal investigation. But the Court’s Order is not so broad. This Court recognized 

and acknowledged the importance of national security, and where the two actions are 

truly inseparable, the Court’s Order permits such action. [ECF No. 64 at 22, 24].

The Government’s brief belies its own claim that a complete intelligence 

assessment cannot be disentangled from the criminal investigation. For example, the 

Government asserts that “a classification review informs the IC’s ‘national security 

risk assessment,’ and the FBI uses that review to inform its ‘criminal investigation 

into the potential mishandling of . . . national defense information,’ as to which 

classification status is highly relevant.” [ECF No. 69 at 13 (quoting Kohler Decl. ¶¶ 6, 

8 While the discovery of classified material in files containing Presidential records 

should not have been at all surprising, NARA allegedly became concerned about 

national security interests within weeks of the turnover by President Trump of fifteen

boxes of records. Yet no notification was provided to Congress at that time. Moreover, 

rather than adhering to the PRA, NARA made an immediate criminal referral. Given 

the circumstances involve the possession by a former President of his own 

Presidential records at a location which had long been utilized to conduct the business 

of the United States, the pursuit of all other available civil mechanisms would, 

respectfully, have been a better exercise of prudential judgment.

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7, ECF No. 69-1)]. In other words, the FBI needs the results of the intelligence 

community’s classification review to determine whether classified material has been 

mishandled. Again, the Government’s own analysis places this as a phased approach

that can be effectuated within the temporary confines of the Court’s Order. 

Indeed, there may be limited circumstances in which a national security 

assessment may also relate to a criminal investigation. Although the Court’s Order 

references ODNI’s assessment of the national security risk, [ECF No. 64 at 19], the 

Order does not prohibit the FBI from participating in the national security 

assessment, id. at 24 (“The Government may continue to review and use the materials 

seized for purposes of intelligence classification and national security assessments.”). 

Thus, the Government’s concern that the FBI is prohibited from evaluating whether 

classified information has been compromised, [ECF No. 69 at 15], is unfounded. 

The operative language in the injunction is “purpose.” If an action’s “purpose” 

is to conduct a national security assessment, it may be undertaken even if it may 

reveal information related to a criminal investigation or require the use of “criminal 

investigative tools.” [ECF No. 69-1 at 5]. However, the Government cannot undertake 

an action in which the purpose is to further the criminal investigation until after the 

Special Master has completed the required review. Although this yields discretion to 

intelligence personnel engaged in the security assessment, such individuals must 

utilize such discretion judiciously to maintain the integrity of the Government in such 

unprecedented circumstances.

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B. A brief delay will not cause irreparable harm to the 

Government’s criminal investigation. 

As the Government has not demonstrated that it is likely to succeed on the 

merits of its appeal, it must demonstrate that the remaining stay factors tilt decidedly 

in favor of granting a stay. See Ruiz, 650 F.2d at 565; see also Virginian R. Co., 272 

U.S. at 672 (noting that a stay pending appeal “is not a matter of right, even if 

irreparable harm might otherwise result to the appellant”). With respect to the 

second stay factor, the Government has not demonstrated that the brief delay 

accompanying the Special Master’s review will cause irreparable harm to its criminal 

investigation.

The Government contends that the injunction will cause irreparable harm to 

the criminal investigation because of an expected modest delay to accommodate the 

Special Master’s review.9 But, as the Court already opined, the Special Master’s 

review will improve the perception of “fairness and public trust”. [ECF No. 64 at 22].

Moreover, the Government refutes its own contention of irreparable harm by

listing numerous investigative actions it can conduct without contravening the 

injunction. [ECF No. 69 at 17]. Indeed, the Government already completed a 

preliminary review of the seized property. Id. at 22 n.20. That the Government has 

already reviewed the documents and can continue to conduct other investigative 

actions undercuts any notion of harm—let alone irreparable harm. 

9 Notably, the affidavit in support of the Government’s motion does not assert that a 

brief delay in the investigation will cause any harm. [See generally ECF No. 69-1].

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Without support, the Government contends that sharing “highly classified 

materials” with a Special Master would irreparably harm the Government and public. 

For example, the Government observes that “[t]he public has an ‘interest in the fair 

and expeditious administration of the criminal laws.” [ECF No. 69 at 16 (quoting 

United States v. Dionisio, 410 U.S. 1, 17 (1973)) (emphasis in motion)]. But in 

Dionisio and other decisions, the Supreme Court has treated expeditiousness as 

competing with interests of fairness to defendants. The Government has not 

identified any precedent for the proposition that delay accompanying the neutral 

review of documents could cause harm to the Government so significant as to be 

“irreparable.” Moreover, any clearance and “need to know” concerns may be readily 

addressed.10

V. PRESIDENT TRUMP AND THE PUBLIC WOULD BE HARMED BY THE STAY

As this Court correctly observed, a criminal investigation of this import—an 

investigation of a former President of the United States by the administration of his 

political rival—requires enhanced vigilance to ensure fairness, transparency, and 

maintenance of the public trust. [See ECF No. 64 at 22 (“[T]he investigation and 

treatment of a former president is of unique interest to the general public, and the 

country is served best by an orderly process that promotes the interest and 

perception of fairness.” (emphasis added))]. 

10 As noted above in footnote 1, neither leaks nor the prospect of a public jury 

trial appear to raise any concerns regarding irreparable harm. Apparently, only the

secure review by a Court appointed and supervised special master under controlled 

access conditions poses a risk to national security.

Case 9:22-cv-81294-AMC Document 84 Entered on FLSD Docket 09/12/2022 Page 19 of 21
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Given the significance of this investigation, the Court recognizes, as does 

President Trump, that it must be conducted in the public view. The Court has 

correctly directed commencement of a process which certainly benefits the 

Government, President Trump and the people of the United States. The Plaintiff 

respectfully submits any stay of the injunction or limitation on the scope of review 

only erodes public trust and the perception of fairness.

VI. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny 

the Government’s motion for a partial stay pending appeal.

Dated: September 12, 2022 Respectfully submitted,

Lindsey Halligan

Florida Bar No. 109481

511 S.E. 5th Avenue

Suite 1008

Fort Lauderdale, FL 33301

Lindseyhalligan@gmail.com

M. Evan Corcoran

SILVERMAN|THOMPSON|

SLUTKIN|WHITE, LLC

400 East Pratt Street – Suite 900

Baltimore, MD 21202

Telephone: (410) 385-2225

Email: ecorcoran@silvermanthompson.com

(pro hac vice)

By: /s/ Christopher M. Kise 

Christopher M. Kise

Florida Bar No. 855545

Chris Kise & Associates, P.A.

201 East Park Avenue

5th Floor

Tallahassee, FL 32301

Telephone: (850) 270-0566

Email: chris@ckise.net

James M. Trusty

Ifrah Law PLLC

1717 Pennsylvania Avenue N.W.

Suite 650

Washington, DC 20006

Telephone: (202) 524-4176

Email: jtrusty@ifrahlaw.com

(pro hac vice)

Counsel for Plaintiff

Donald J. Trump

Case 9:22-cv-81294-AMC Document 84 Entered on FLSD Docket 09/12/2022 Page 20 of 21
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 12, 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/ Christopher M. Kise

Christopher M. Kise

Case 9:22-cv-81294-AMC Document 84 Entered on FLSD Docket 09/12/2022 Page 21 of 21