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’ RESPONSE BRIEF TO 

THE SPECIAL MASTER ON GLOBAL ISSUES

Plaintiff filed this action for appointment of a Special Master with the professed aim

of “preserv[ing] the sanctity of executive communications and other privileged materials.” 

Docket Entry (“D.E.”) 1 at 14. But having received and reviewed copies of all of the 

documents obtained by the government in its August 8, 2022 search of his premises (other 

than those with classification markings), Plaintiff is now attempting to shift the focus of this 

litigation away from questions of privilege. Instead, Plaintiff has offered a sweeping and 

baseless theory of the Presidential Records Act (“PRA”) that cannot give rise to the relief he 

seeks. 

Plaintiff’s shifting arguments belie the immovable realities of the record. In his 

designations to the Special Master, Plaintiff now concedes there is, at most, a portion of a 

one-page document that is subject to a disputed claim of attorney-client privilege.1 Moreover, 

1 During the course of its review and consistent with the filter protocol, the government’s 

investigative team referred this document to the filter team, and the government has ensured 

that it is no longer accessible to the investigative team pending resolution of its status. The 

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Plaintiff asserts executive privilege as his principal basis for withholding just 16 out of 2,916

documents—less than one percent of the total universe of seized materials.

In lieu of making viable privilege claims, Plaintiff now asserts that the overwhelming 

majority of documents—more than 97% of the total seized—qualify as his “personal” records

under the PRA. Even if correct (which it is not), that characterization amounts to a red herring

in this proceeding. Documents commingled or collectively stored with the classified materials

located at Plaintiff’s premises were lawfully seized by the FBI in accordance with the terms 

of the court-authorized search warrant because of their relevance to the government’s ongoing 

investigation. That relevance exists irrespective of whether they were personal papers or 

government records. In the absence of a valid and substantiated claim of privilege, all such

documents must now be made available to the investigative team.

Plaintiff’s efforts to sidetrack these proceedings with irrelevant questions can readily 

be dispatched. Plaintiff himself has distinguished between records that he claims to have a 

genuine basis for designating as “personal” within the meaning of the Presidential Records 

Act (PRA), 44 U.S.C. § 2201 et seq., and those that he claims are “personal” based on nothing 

other than attorney say-so and tautological reasoning. As discussed below, neither the PRA 

nor the single district court decision on which Plaintiff’s argument rests gives him the 

sweeping authority he claims to convert governmental records into “personal” property

simply by the act of removing them from the White House. 

More fundamentally, Plaintiff repeatedly mischaracterizes the legal basis on which 

filter team will be filing a separate letter to the Special Master regarding its views about this 

document.

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these materials were seized. The FBI’s court-authorized search of Plaintiff’s premises was not 

undertaken on behalf of the National Archives to ensure compliance with the PRA. It was 

undertaken in connection with an ongoing national security and criminal investigation into 

potential violations of federal criminal statutes prohibiting, inter alia, the unlawful retention 

of national defense information, obstruction of justice, and the willful removal of government 

records. Nothing in the PRA preempts the application of those criminal laws.

As for the limited universe of materials over which Plaintiff makes executive privilege 

claims, his latest filing falls far short of demonstrating that the current Executive Branch should 

be barred from reviewing and using documents recovered in a court-authorized search in the 

course of an ongoing criminal and national security investigation. The government’s 

compelling need for these materials is plain, and the Special Master should reject Plaintiff’s 

attempts to use vague and unsupported assertions to further delay the investigation. 

DISCUSSION

I. Plaintiff’s PRA-Related Claims Are Meritless

Plaintiff’s brief doubles down on a wholesale rewriting of the PRA that has no basis in 

its text or purpose. Plaintiff appears to offer this argument based on an assumption that a 

document’s designation as “personal” somehow precludes the government from reviewing it. 

He is wrong on both points.

A. Plaintiff’s Reading of the PRA is Meritless

Plaintiff asserts that a law enacted by Congress in the wake of Watergate to preserve 

the public’s access to Presidential records actually allows a President to (1) pack up and 

remove boxes full of Presidential records at the end of his term in office; and (2) convert those 

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Presidential records into “personal” records through that simple act of removal. To state 

Plaintiff’s position is to refute it.

First, Plaintiff’s reading is wholly inconsistent with the PRA’s text. The PRA provides 

detailed definitions for “personal” and “Presidential” records and requires sitting Presidents 

and their staffs to preserve and file records accordingly. 44 U.S.C. §§ 2201(2)-(3), 2203(a)-(b).

It provides that the National Archives and Records Administration (NARA) “shall assume 

responsibility for the custody, control, and preservation of, and access to” a President’s 

records “[u]pon the conclusion of a President’s term of office.” Id. § 2203(g)(1). And it 

provides the Archivist the authority to “initiat[e] action through the Attorney General for the 

recovery of records wrongfully removed.” Id. §§ 2905(a), 3106; see id. § 2112(c). The PRA thus 

presumes that a President cannot transmute Presidential records into “personal” records 

simply by removing them. If he could, any enforcement action to recover “records wrongfully 

removed” by a President when departing from office would be pointless: under Plaintiff’s 

reading, a court adjudicating such a lawsuit would have to treat all such records as “personal” 

records because they were removed.

Second, Plaintiff’s reading would undermine in the extreme the PRA’s core purpose. 

In enacting the PRA, “Congress sought to establish the public ownership of presidential 

records and ensure the preservation of presidential records for public access after the 

termination of a President’s term in office.” Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 

1991) (citing H.R. Rep. No. 95-1487, 95th Cong., 2d Sess. (1978)). That purpose would, of 

course, be nullified if a President could unreviewably convert his official records into 

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“personal” records simply by taking them with him when he leaves office.

Third, for the reasons already explained by the government, the single district court 

decision relied upon by Plaintiff, Judicial Watch v. National Archives and Records Administration, 

845 F. Supp. 2d 288 (D.D.C. 2012), provides no support for Plaintiff’s upside-down reading

of the PRA. D.E. 173 at 5-6. To reiterate, the court in that case held that a private litigant could 

not compel NARA to exercise its enforcement authority to obtain audio recordings that both 

former President Clinton and NARA assessed were personal records. The court nowhere 

suggested that a President can willfully designate Presidential records as “personal” records, 

that such actions can never be challenged by anyone, or that the act of removing Presidential 

records from the White House automatically turns them into “personal” records. Nor did 

counsel for the government suggest that the PRA’s civil remedy provision displaces criminal 

laws. The dispute in Judicial Watch concerned whether a third party has a civil mechanism to 

enforce alleged violations of the PRA or whether—as the government maintained—that 

responsibility rests solely with NARA and the Attorney General. Nothing in the Judicial 

Watch civil litigation presented the question of whether the PRA somehow exempts former 

Presidents from the obligation to comply with criminal laws, including laws prohibiting the 

unlawful retention of national defense information and obstruction of justice. It is thus wholly 

unsurprising that when asked what the “remedy” is if a President, while in office, excessively 

designates his records as “personal” records, counsel responded that it lies with NARA and 

the Attorney General to pursue an enforcement suit. Tr. at 13:10-24 (D.E. 14), Judicial Watch, 

No. 1:10-cv-1834 (D.D.C.).

Fourth, Plaintiff’s arguments fail even under his own incorrect reading of the PRA. 

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Rather than assert—and substantiate—that he made any actual, specific designations of any 

records as “personal” records while still in office, Plaintiff claims that he made a “designation 

decision” simply because the records at issue “were packed, transported, and delivered to his 

residence in Palm Beach, Florida” while he was still President. D.E. 171 at 5. Given that 

Plaintiff’s arguments rely entirely on his purported singular authority while President to make 

“designation decision[s],” he at least must claim—through competent evidence—to have 

personally made such a decision. Furthermore, Plaintiff fails to explain how, if the act of 

packing and removing Presidential records transforms those records into “personal” records, 

some of the seized records (69 out of 2,916, according to Plaintiff) are still Presidential records

even under his own categorization scheme.

B. A Document’s Status as “Personal” Under the PRA Has No Bearing on the 

Government’s Entitlement to Use it for Investigative Purposes

Plaintiff appears to assume that if a seized record is a “personal” record for purposes 

of the PRA, the government is somehow prohibited from reviewing or using it as evidence in 

its criminal investigation. See, e.g., D.E. 171 at 10 (the Special Master “need not reach” 

executive privilege issues because of Plaintiff’s assertion that the seized records are his 

“personal” records); id. at 12 (“Plaintiff raises executive privilege as an alternative basis for 

non-disclosure,” and even if the Special Master disagrees as to the records’ status under the 

PRA, “the documents still may not be utilized by the Government because they are 

privileged”) (emphases added). Plaintiff’s assumption has no basis in law.

To state the obvious: Law enforcement officials conduct judicially authorized searches 

to seize evidence of crimes. Fed. R. Crim. P. 41(c)(1). That evidence may frequently consist 

of personal effects, including personal papers. That is why the government usually must 

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obtain a warrant before conducting a search and seizure, as occurred here. Nothing in the law 

prohibits the government from using documents recovered in a search if they are “personal,” 

and Plaintiff offers no authority suggesting otherwise.

Putting Plaintiff’s string of unstated assumptions in the strongest light possible, 

Plaintiff appears to contend that (1) if a search results in the recovery of records that may be 

subject to the PRA, then the PRA provides the exclusive legal framework controlling the 

disposition of those records; and (2) the government is therefore barred from reviewing or 

using records that—under Plaintiff’s incorrect interpretation of the PRA—have been deemed 

to be “personal” records. Indeed, Plaintiff claims repeatedly that the initiation of a civil suit 

under the PRA is the only “remedy” or “avenue of relief” available to the government in these 

circumstances. D.E. 171 at 7, 10. Those contentions are baseless.

At a fundamental level, Plaintiff misunderstands the government’s actions at issue in 

these proceedings. This matter is not, as Plaintiff’s counsel has asserted, an “overdue library 

book scenario,” 9/1/2022 Hearing Tr. 31:20-21, and the government did not execute a search 

of Plaintiff’s premises for purposes of enforcing the PRA or advancing the archival interests 

of NARA. As should have been clear to Plaintiff upon his receipt of the search warrant, the 

government executed its search as part of its investigation into potential violations of criminal 

statutes prohibiting, inter alia, the unlawful retention of national defense information and 

obstruction of justice. See 18 U.S.C. §§ 793, 1519. The search was conducted, moreover, to 

recover highly sensitive documents that were kept in a location not approved for the storage 

of classified information and whose disclosure could damage national security. Plaintiff’s 

suggestion that the government’s only recourse in such a circumstance is to bring a civil suit 

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simply reads these criminal laws and the government’s “compelling interest in protecting . . . 

the secrecy of information important to our national security,” Snepp v. United States, 444 U.S. 

507, 509 n.3 (1980), out of existence.

Of course, had Plaintiff complied with the PRA upon leaving office and deposited 

records bearing classification markings with NARA—or had he returned all such records after 

being asked to by NARA, or after being served with a grand jury subpoena—a search would

presumably have been unnecessary. But the PRA does not repeal or displace criminal laws 

related to the retention of national defense information and obstruction of justice, and it does 

not limit or affect the government’s ability to use evidence obtained in a judicially authorized 

search to investigate potential violations of those laws. Nor does the PRA repeal or displace

18 U.S.C. § 2071, which penalizes anyone who “willfully and unlawfully conceals [or] 

removes” records “in any public office.” See, e.g., Carcieri v. Salazar, 555 U.S. 379, 395 (2009) 

(“We have repeatedly stated that absent a clearly expressed congressional intention an 

implied repeal will only be found where provisions in two statutes are in irreconcilable 

conflict, or where the latter Act covers the whole subject of the earlier one and is clearly 

intended as a substitute.”) (internal quotations and alterations omitted)).2

Simply put, the government can review and use materials obtained in its judicially 

authorized search regardless of whether they are “Presidential” or “personal” records under 

2 Indeed, the PRA itself states that presidential records shall not be made available to anyone 

who “has been convicted of a crime relating to the . . . removal . . . of records of the Archives.” 

44 U.S.C. § 2204(f) (emphasis added). And the PRA references both civil litigation and other 

mechanisms for legal redress. See 44 U.S.C. § 2905(a) (“The Archivist shall . . . assist the head 

of the agency in initiating action through the Attorney General for the recovery of records 

unlawfully removed and for other redress provided by law.”) (emphasis added).

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the PRA. At most, a record’s categorization under the PRA affects the ultimate disposition 

of that record—whether it would be provided to NARA or returned to Plaintiff—after the 

government’s investigation has concluded. And regardless of a record’s status as 

“Presidential” or “personal,” the government has no objection to Plaintiff retaining copies of 

all of the seized records except those bearing classification markings.

II. Plaintiff’s Executive Privilege Claims Are Meritless

Plaintiff’s assertions as to executive privilege further lack merit. In a significant 

majority of instances, Plaintiff has asserted the privilege only as a fallback if the Special Master 

disagrees that these materials are “personal” records.

3 That is, Plaintiff’s primary contention 

is that these are “personal” records, and he asserts executive privilege only in the event the 

Special Master disagrees. One of two things must be true: (1) Plaintiff truly means to contend 

that these are materials “of a purely private or nonpublic character which do not relate to” his 

performance of official duties, 44 U.S.C. § 2203(3), in which case he cannot also assert that 

they are subject to executive privilege. Or (2) Plaintiff claims that these materials do pertain 

to his official duties as President, in which case he admits to having willfully disregarded the 

PRA by removing them and attempting to designate them as “personal” records. But see U.S. 

Const. art. II, § 3 (President “shall take Care that the Laws be faithfully executed”). Either 

way, Plaintiff’s assertions of executive privilege should be given little weight in light of the 

3 In his privilege log, Plaintiff designated 69 records as Presidential records; asserted executive 

privilege as to 16 of them; claimed the remaining 2,847 records are his “personal” records; 

and asserted executive privilege as a fallback for 105 of those purportedly “personal” records. 

In his brief, however, Plaintiff suggests that he may have intended to designate all records as 

“personal” records. See D.E. 171 at 10 (“Generally, the Special Master need not reach” 

executive privilege issues because Plaintiff “designated the materials as personal under the 

PRA.”).

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manner in which they have been presented. 

Plaintiff is further mistaken in his assertion that the Supreme Court’s holding in Nixon 

v. Administrator of General Services, 433 U.S. 425 (1977) (Nixon v. GSA), is somehow 

inapplicable. Plaintiff correctly acknowledges that the Supreme Court rejected former 

President Nixon’s separation-of-powers challenge to a law requiring the Executive Branch to 

take possession of his papers and tape recordings. D.E. 171 at 16. But the Court’s reasons for 

doing so are directly relevant here: At the outset, the Court framed the issues presented by 

noting that “unlike in United States v. Nixon[, 418 U.S. 683 (1974)], in which appellant asserted 

a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, 

this case initially involves appellant’s assertion of a privilege against the very Executive 

Branch in whose name the privilege is invoked.” 433 U.S. at 447-48. Although the Court 

concluded that a former President may assert “the Presidential privilege”—though “only as 

to those materials whose contents fall within the scope of the privilege recognized in United 

States v. Nixon,” id. at 4494

—it further emphasized that the circumstances did not involve 

making former President Nixon’s papers or recordings available to the general public, id. at 

50. “[T]hus left with the bare claim that the mere screening of the materials by the archivists 

will impermissibly interfere with candid communications of views by Presidential advisers,” 

the Court concluded that “the question is readily resolved.” Id. at 451.

Of course, the government’s purpose in reviewing the seized materials differs here

4 For that reason, it is highly doubtful that a former President can assert the deliberative 

process privilege, contrary to Plaintiff’s suggestion, see D.E. 171 at 14. But because Plaintiff’s 

privilege assertions fail even under the heightened protections applicable to Presidential 

communications, the Special Master need not parse the documents at issue to determine 

which of the two privileges (if either) might apply.

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from that in Nixon v. GSA. It wishes to review and use these materials for purposes of enforcing 

criminal statutes and protecting national security information. These are core Executive 

Branch responsibilities, see U.S. Const. art. II, § 3; Dep’t of Navy v. Egan, 484 U.S. 518, 527

(1988), and they serve at least as compelling an interest as that at stake in Nixon v. GSA.

Nor are the facts of In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), more closely 

analogous. D.E. 171 at 16. That case involved an investigation by an Independent Counsel 

appointed by a special judicial panel and largely independent from the Department of Justice. 

See 40 U.S.C. § 591 et seq.; Morrison v. Olson, 487 U.S. 654, 660-64 (1988) (explaining 

Independent Counsel’s unique authorities). And the case involved a grand jury subpoena for 

White House records held by an incumbent administration, as to which that administration 

invoked executive privilege. In re Sealed Case, 121 F.3d at 735. Given the Independent 

Counsel’s unique status and the dueling positions of government officials as to executive 

privilege, it is unsurprising that the court treated the privilege questions in that case as 

governed by United States v. Nixon rather than Nixon v. GSA.

In any event, as the government has explained, Plaintiff’s executive privilege claims 

fail under the qualified test articulated in United States v. Nixon. Government records recovered 

in the search—which any document potentially subject to executive privilege would have to 

be—may constitute evidence of violations of 18 U.S.C. § 2071. Moreover, these records were 

comingled with or stored next to documents bearing classification markings when they were 

seized. They may therefore provide important evidence as to who possessed or accessed 

classified records and when, and they may corroborate the testimony of witnesses to the 

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potential offenses at issue. See D.E. 173 at 14.

Rather than set forth any arguments related to United States v. Nixon, Plaintiff 

incorrectly describes the standard needed to overcome a claim of executive privilege and then 

disclaims the ability to offer anything further. Plaintiff’s submission to the Special Master

describes the criteria—“(1) relevancy; (2) admissibility; and (3) specificity”—needed to obtain 

a trial subpoena pursuant to Federal Rule of Criminal Procedure 17(c). D.E. 171 at 17; see 

United States v. Nixon, 418 U.S. at 697 (noting that the subpoena “is challenged on the ground 

that the Special Prosecutor failed to satisfy the requirements of [Rule] 17(c)” and that “[i]f we 

sustained this challenge, there would be no occasion to reach the claim of privilege”); id. at 

700 (describing the three criteria quoted by Plaintiff and stating that “we are unwilling to 

conclude that the District Court erred in the evaluation of the Special Prosecutor’s showing 

under Rule 17(c)”). Plaintiff offers no reason why the government should have to meet the 

requirements of Rule 17(c) to review materials it already has in its possession from a lawful 

search and seizure. Nevertheless, the documents are plainly relevant to the government’s 

investigation for the reasons just described; Plaintiff has offered no ground to challenge their 

admissibility; and the pool of 121 documents in dispute is specific. 

Further, Plaintiff effectively concedes that he has no specific bases to support his claims 

of executive privilege. His assertions of privilege are cursory and do not even differentiate 

between Presidential communications and documents potentially subject to deliberative 

process privilege. And Plaintiff’s complaint that he is “unaware of the specific arguments 

relied upon by the Magistrate in issuing the warrant” because the affidavit supporting it 

remains under seal, D.E. 171 at 18, is inapposite. The government does not rely on any sealed 

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material from its affidavit to substantiate its arguments for overcoming executive privilege. 

Indeed, the Special Master has not had access to those portions of the affidavit. 

III. Plaintiff Should File a Declaration or Affidavit Regarding the Government’s 

Inventory or Must Waive any Challenge Regarding the Government’s 

Inventory

Plaintiff maintains that “there is no basis for requiring Plaintiff to submit” a 

declaration or affidavit regarding the government’s inventory. D.E. 171 at 18. Having now 

had the ability to review all of the seized records except those bearing classification markings, 

Plaintiff is in a position to state whether the government’s inventory contains any omissions 

or errors. Nonetheless, if Plaintiff insists that he should not be required to file a declaration or 

affidavit, then he must be deemed to waive any challenges regarding the accuracy of the 

government’s inventory.

CONCLUSION

For the foregoing reasons, the Special Master should adopt the government’s positions 

as to the proper categorization of records under the PRA; should reject Plaintiff’s assertions 

of executive privilege; and should make clear that Plaintiff has no other basis to bar the 

government’s review and use of the seized records.

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 

Email: juan.antonio.gonzalez@usdoj.gov

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 MATTHEW G. OLSEN

Assistant Attorney General

National Security Division 

 

 /s Jay I. Bratt 

 JAY I. BRATT

CHIEF

Julie A. Edelstein

Stephen Marzen

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

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