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. 

 / 

 

[PROPOSED] BRIEF OF FORMER FEDERAL AND STATE GOVERNMENT 

OFFICIALS AS AMICI CURIAE IN OPPOSITION TO FORMER PRESIDENT 

TRUMP’S MOTION FOR JUDICIAL OVERSIGHT AND ADDITIONAL RELIEF 

Jay B. Shapiro 

STEARNS WEAVER MILLER 

WEISSLER ALHADEFF &

SITTERSON, P.A. 

150 West Flagler Street, 

Suite 2200 

Miami, FL 33130 

Tel: (305) 789-3229 

jshapiro@stearnsweaver.com 

Norman L. Eisen* 

NORMAN EISEN PLLC 

2000 Massachusetts Avenue NW 

Washington, DC 20036 

Tel: (202) 709-4945 

nleisen@normaneisenllc.com 

Fred Wertheimer* 

DEMOCRACY 21 

2000 Massachusetts Avenue NW 

Washington, DC 20036 

Tel: (202) 355-9600 

fwertheimer@democracy21.org

Brad S. Karp* 

Roberto Finzi* 

Harris Fischman* 

David K. Kessler* 

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP 

1285 Avenue of the Americas 

New York, NY 10019-6064 

Tel: (212) 373-3000 

bkarp@paulweiss.com 

rfinzi@paulweiss.com 

hfischman@paulweiss.com 

dkessler@paulweiss.com 

Counsel for Amici Curiae 

* Pro hac vice application forthcoming 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 1 of 23
TABLE OF CONTENTS 

INTEREST AND IDENTITY OF AMICI CURIAE ............................................................ 1

INTRODUCTION ............................................................................................................... 1

BACKGROUND ................................................................................................................. 3

ARGUMENT ....................................................................................................................... 6

I. THERE IS NO LEGAL BASIS FOR THE APPOINTMENT OF A 

SPECIAL MASTER TO REVIEW THE CLAIM OF EXECUTIVE 

PRIVILEGE HERE. .................................................................................... 6

A. Cases In Which Courts Have Appointed Special Masters 

Involve Claims of Attorney-Client (Not Executive) Privilege. ....... 6

B. The Presidential Records Act Forecloses the Relief that the 

Former President Seeks. ................................................................ 10

II. EVEN IF THERE WAS A LEGAL BASIS FOR APPOINTING A 

SPECIAL MASTER, EXECUTIVE PRIVILEGE CLEARLY DOES 

NOT APPLY TO THE SEIZED RECORDS. ........................................... 14

CONCLUSION .................................................................................................................. 19

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1 

INTEREST AND IDENTITY OF AMICI CURIAE

Amici are former federal prosecutors Donald B. Ayer, Gregory A. Brower, John J. 

Farmer Jr., Stuart M. Gerson, Peter D. Keisler, William F. Weld, and former New Jersey 

Governor Christine Todd Whitman. 

Amici all served in Republican administrations and collectively have decades of 

experience prosecuting cases involving sensitive materials or advising on matters 

regarding the proper scope of executive power and executive privilege. They also have 

substantial personal experience with the structure and process of law enforcement 

investigations, including investigations involving public officials. 

Given their decades of public service, their personal familiarity with the law 

enforcement and constitutional issues at issue here, and their commitment to the integrity 

of our democratic system, Amici maintain an active interest in the proper resolution of the 

important questions raised by former President Donald J. Trump’s pending motion. 

INTRODUCTION 

Amici respectfully submit this brief in connection with former President Trump’s 

motion for the appointment of a special master to adjudicate his claims of executive 

privilege over documents seized by federal prosecutors pursuant to a duly-issued warrant. 

For the reasons that follow, and regardless of one’s political views, it is clear that there is 

no legal support for the relief requested by the former President. The motion should be 

denied, for three independent reasons.1

1

 To the extent that the former President is requesting the appointment of a special master 

to address claims of attorney-client privilege, Amici take no position on that request. 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 3 of 23
2 

First, the relief sought is unprecedented. The former President has not cited—and 

Amici are not aware of—any precedent involving the appointment of a special master to 

adjudicate a claim of executive privilege (as opposed to attorney-client privilege) by a 

former president against the same Executive Branch to which the privilege belongs. That 

is not surprising. The purpose of the executive privilege is to prevent those outside the 

Executive Branch from intruding in the decision-making of the Executive Branch. That 

intrusion does not occur when the Executive Branch itself is the entity reviewing the 

records, and for its internal use. 

Second, Congress has established a specific procedure, set out in the Presidential 

Records Act (“PRA”), through which a former president may challenge a sitting 

president’s invocations of (or refusals to assert) executive privilege. The former 

President’s motion ignores that statute’s requirements, including the requirement that any 

challenge by a former president to the Executive Branch’s rejection of his claim of 

privilege be brought in the jurisdiction available under the PRA, the United States 

District Court for the District of Columbia. The former President thus seeks relief to 

which he is not entitled—adjudication of his claims of executive privilege by a special 

master—in a court that is statutorily precluded from hearing the matter. 

Third, the appointment of a special master to adjudicate the claims of executive 

privilege would be a waste of time because the claim of executive privilege against the 

Executive Branch in this case is manifestly frivolous. Controlling legal precedent on this 

issue establishes that determinations of executive privilege made by the current President 

outweigh claims of privilege made by a former president. Here, it is abundantly clear 

that the Executive Branch, including the President and the Acting Archivist of the United 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 4 of 23
3 

States, have determined that the records at issue should be reviewed by the U.S. 

Department of Justice (“DOJ”) and the Federal Bureau of Investigation. Further, and in 

any event, executive privilege is not absolute; its protections are subject to a balancing of 

interests. Here, the former President has identified no concrete interests supporting his 

position, but the Executive Branch seeks the seized records for core constitutional 

functions: to conduct a criminal investigation and to assess the damage caused by 

potential mistreatment of classified information. The unprecedented appointment of a 

special master in this case would frustrate those core and time-sensitive government 

functions. 

BACKGROUND 

This dispute relates to the federal government’s efforts to recover official records 

that former President Trump took from the White House to his Mar-a-Lago estate in Palm 

Beach, Florida. 

In January 2021, in the process of finishing his term, the former President moved 

his belongings to Mar-a-Lago. The National Archives and Records Administration 

(“NARA”) subsequently learned of approximately two dozen boxes of presidential 

records that had not been returned to it as required under the PRA. See Luke Broadwater, 

et al., Inside the 20-Month Fight to Get Trump to Return Presidential Material, N.Y.

TIMES (Aug. 26, 2022), https://www.nytimes.com/2022/08/26/us/politics/trumpdocuments-search-timeline.html. 

 In January 2022, NARA was finally able to retrieve fifteen boxes of records, 

including documents bearing various classification markings, from former President 

Trump’s estate. See Kevin Breuninger, National Archives Retrieved 15 Boxes of Trump 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 5 of 23
4 

White House Documents from Mar-a-Lago, CNBC (Feb. 7, 2022), 

https://www.cnbc.com/2022/02/07/national-archives-retrieved-15-boxes-of-trump-whitehouse-documents-from-mar-a-lago.html. Twenty-five of those documents were marked 

“Top Secret.” Affidavit in Support of an Application Under Rule 41 for a Warrant to 

Search and Seize, United States v. Sealed Search Warrant, No. 22-mj-08332 (S.D. Fla. 

Aug. 26, 2022), ECF No. 102-1 (“Search Warrant Affidavit”) at ¶ 47. 

In February 2022, NARA alerted the DOJ to the contents of the fifteen boxes of 

materials retrieved from Mar-a-Lago. See id. ¶ 1. Former President Trump attempted to 

delay the DOJ’s review of the materials by asserting executive privilege over the records. 

Letter from Debra S. Wall, Acting Archivist of the United States, NARA, to Evan 

Corcoran (May 10, 2022) at 2, https://www.archives.gov/files/foia/wall-letter-to-evancorcoran-re-trump-boxes-05.10.2022.pdf (the “NARA May 10 Letter”). NARA, 

however, in consultation with the Assistant Attorney General for the Office of Legal 

Counsel, rejected former President Trump’s claim of executive privilege over the 

materials, on the basis that there was no precedent nor legal basis for the former 

President’s assertion of executive privilege in these circumstances. Id. at 2–3. The FBI 

then launched a criminal investigation to determine how these classified documents were 

removed from the White House; whether Mar-a-Lago was an authorized storage location 

for those documents; whether additional classified documents had been removed from the 

White House; and which individuals were involved in the removal and storage of the 

documents at Mar-a-Lago. Id. 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 6 of 23
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In May 2022, former President Trump was served with a grand jury subpoena 

seeking documents bearing classification markings. Broadwater, Inside the 20-Month 

Fight to Get Trump to Return Presidential Material. 

 On August 5, 2022, the FBI obtained a warrant to search Mar-a-Lago on the 

grounds that it had found National Defense Information2 in the boxes NARA retrieved 

from Mar-a-Lago—including 92 documents marked “Top Secret”—and that there was 

probable cause to believe additional documents containing such information remained at 

the estate. Broadwater, Inside the 20-Month Fight to Get Trump to Return Presidential 

Material. On August 8, 2022, FBI agents searched Mar-a-Lago and seized 

approximately twelve boxes of documents. See Breuninger, National Archives Retrieved 

15 Boxes of Trump White House Documents from Mar-a-Lago. 

On August 22, 2022, former President Trump initiated this matter by filing a 

Motion for Judicial Oversight and Additional Relief that asks this Court to appoint a 

special master to, among other functions, review the seized documents. That motion 

argues that “fairness” requires a “neutral reviewer” to ensure the “sanctity” of the seized 

records, which were created during the former President’s term of office and are therefore 

“presumptively privileged.” ECF No. 1 at 15. The motion refers to various “executive 

communications and other privileged materials.” Id. at 14. According to former 

President Trump, the filter team established by the DOJ is unable to serve as a neutral 

2

 A footnote in the search warrant affidavit explores the definition of “national defense 

information” for purposes of 18 U.S.C. § 793(e), as the statute does not provide a 

definition. Search Warrant Affidavit at 22 n.2. The affidavit states that courts have 

construed the term broadly to refer to “military and naval establishments and the related 

activities of national preparedness,” that the information “must be ‘closely held’ by the 

U.S. government,” and that some courts have also held that the disclosure of such 

information “must be potentially damaging to the United States.” Id. 

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reviewer because the team’s protocols were approved by a magistrate judge ex parte

“without input from” former President Trump. ECF No. 1 at 17. At this Court’s 

direction, the former President subsequently submitted a Supplemental Filing in Support 

of the Motion for Judicial Oversight and Additional Relief that made substantially the 

same arguments for a special master. ECF No. 28. 

On August 27, 2022, this Court entered a preliminary order providing notice of 

the Court’s “preliminary intent” to appoint a special master and setting a hearing on the 

Motion and briefing schedule. 

ARGUMENT 

I. THERE IS NO LEGAL BASIS FOR THE APPOINTMENT OF A 

SPECIAL MASTER TO REVIEW THE CLAIM OF EXECUTIVE 

PRIVILEGE HERE. 

A. Cases In Which Courts Have Appointed Special Masters Involve 

Claims of Attorney-Client (Not Executive) Privilege. 

In arguing for the appointment of a special master to address claims of executive 

privilege, former President Trump’s motion relies entirely on cases in which a special 

master was appointed to address claims of attorney-client privilege, not executive 

privilege. Moreover, each of those cases involved the review of documents seized during 

the search of a law office or lawyer’s home,3

 locations likely to hold substantial records 

3

 In the Matter of Search Warrants Executed on April 9, 2018, No. 18-MJ-3161 

(S.D.N.Y.), ECF No. 104 at 39 (search of lawyer’s office); In re Sealed Search 

Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 2020 WL 

6689045, at *3 (S.D. Fla. Nov. 2, 2020) (search of in-house counsel’s office); United 

States v. Stewart, 2002 WL 1300059, at *1 (S.D.N.Y. June 11, 2002) (search of 

lawyer’s office); United States v. Hunter, 13 F. Supp. 2d 574, 580 (D. Vt. 1998) (search 

of lawyer’s home office); United States v. Abbell, 914 F. Supp. 519, 519 (S.D. Fla. 

1995) (search of lawyer’s office); In re Search Warrant for Law Offices Executed on 

March 19, 1992, 153 F.R.D. 55, 57 (S.D.N.Y. 1994) (search of lawyer’s office). 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 8 of 23
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implicating attorney-client privileges held by a number of different individuals, including 

individuals not related to the investigation giving rise to the search. 

Because of the high likelihood that privileged attorney-client materials and work 

product would be collected in the search of these locations, and because the collection 

and review of those materials often implicates the rights and privileges of unrelated 

parties, courts have recognized that those searches “raise special concerns, which impose 

a need for heightened care.” United States v. Stewart, 2002 WL 1300059, at *3 

(S.D.N.Y. June 11, 2002). These concerns can be especially acute where the search in 

question (unlike the search at issue here) is of a criminal defense attorney’s offices, 

because such a search “raise[s] Sixth Amendment concerns that would not otherwise be 

present in the search of the offices of a civil litigation attorney,” and because the seized 

materials are “likely to contain privileged materials relating not only to unrelated criminal 

defendants but also to the clients of attorneys other than the defendant, for whom there 

has been no showing of probable cause of criminal conduct.” Id. at *5, 7.4

 

Nothing in any of the precedents cited by the former President says anything 

about executive privilege, a doctrine that implicates entirely different interests and 

4

 Even while recognizing that extraordinary circumstances can allow for the appointment 

of a special master to protect attorney-client privilege, courts have nevertheless 

generally maintained the position that “the filter team process adequately safeguards the 

attorney-client privilege and the constitutional rights of the search subjects and their 

clients.” Order, In re Search Warrants Executed on April 28, 2021, No. 1:21-mc-00425 

(May 28, 2021 S.D.N.Y.), ECF No. 20 at 4; Apr. 26, 2018 Hr’g Tr., In re Search 

Warrants Executed on April 9, 2018, No. 18-MJ-3161 (May 2, 2018 S.D.N.Y.), ECF. 

No. 38 at 8:3–9 (“As I’ve said before, I view a taint team to be as fair as one done by a 

good special master. I am agreeing with the government and counsel that a special 

master makes sense at this point, notwithstanding that I think we all know that the 

Southern District prosecutors have integrity and decency and could do the job with 

utmost integrity.”). 

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concerns. Specifically, the executive privilege at issue operates to protect a sitting 

president’s decision-making and deliberations to ensure the receipt of full and frank 

advice. See Trump v. Thompson, 20 F.4th 10, 25–26 (D.C. Cir. 2021), cert. denied, 142 

S. Ct. 1350 (2022) (internal citations omitted) (“[The presidential communications] 

privilege allows a President to protect from disclosure ‘documents or other materials that 

reflect presidential decisionmaking and deliberations and that the President believes 

should remain confidential.’ . . . [b]ecause ‘[a] President and those who assist him must 

be free to explore alternatives in the process of shaping polices and making decisions and 

to do so in a way many would be unwilling to express except privately.’’”); In re Lindsey, 

148 F.3d 1100, 1120 (D.C. Cir. 1998) (Tatel, J. concurring) (internal citations omitted) 

(“Unlike the executive privilege—a broad, constitutionally derived privilege that protects 

frank debate between President and advisers,” the attorney-client privilege is “narrower” 

and protects “only communications with lawyers ‘for the purpose of obtaining legal 

assistance.’”). 

Not surprisingly given this context, former President Trump has failed to explain 

why cases involving the appointment of a special master to review for attorney-client 

privilege have any relevance here.5

 A special master in this matter would not, for 

5

 In a number of the cases cited in the motion, no party objected to the appointment of a 

special master. See In re Search Warrants Executed on April 28, 2021, 2021 WL 

2188150, at *4 (S.D.N.Y. May 28, 2021) (noting, in regard to government’s request to 

appoint a special master to review potentially privileged documents, that the subjects of 

the searches, “Giuliani and Toensing[,] do not appear to dispute that the appointment of 

a special master is appropriate”); In re Search Warrants Executed on April 9, 2018, No. 

18-MJ-3161 (S.D.N.Y. April 26, 2018), ECF. No. 28 at 1 (informing the court, in 

advance of the conference regarding appointment of a special master to conduct the 

review of the potentially privileged materials, that the government was prepared to 

withdraw its objection to such an appointment); see also Fed. R. Civ. P. 53(a)(1) 

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example, protect the interests or rights of third parties, which is a primary attorney-client 

privilege concern during the search of law firms and lawyers’ offices. Cf. In re Sealed 

Search Warrant and Application for a Warrant by Tel. or Other Reliable Elec. Means, 

2020 WL 6689045, at *2 (S.D. Fla. Nov. 2, 2020), aff’d, 11 F.4th 1235 (11th Cir. 2021) 

(affirming order authorizing federal prosecutor to conduct filter review and rejecting 

movant’s reliance on cases regarding searches of law offices because “those cases 

involved different concerns,” including the “risk that the members of the filter team 

would at some point be involved in the criminal investigation and/or prosecution of other 

clients who were not the subject of the underlying investigation,” which concerns did not 

apply “where the documents seized pertain only to Movants and its in-house counsel”). 

The executive privilege belongs to the Executive Branch, and the materials here are being 

reviewed by the Executive Branch. See Thompson, 20 F.4th at 26 (quoting Nixon v. 

Adm’ of Gen. Services, 433 U.S. 425, 449 (1977)) (“The executive privilege is just that—

a privilege held by the Executive Branch, ‘not for the benefit of the President as an 

individual, but for the benefit of the Republic.’”). 

Moreover, unlike the evaluation of the attorney-client privilege, the decision 

about whether executive privilege applies to a certain set of communications is itself best 

left to the special expertise of the executive branch. Cf. Trump v. Thompson, 

573 F. Supp. 3d 1, 17 (D.D.C. 2021), aff’d, 20 F.4th 10 (D.C. Cir. 2021), cert. denied, 

142 S. Ct. 1350 (2022) (holding that former President Trump’s “assertion of privilege is 

outweighed by President Biden’s decision not to uphold the privilege, and the court will 

(permitting appointment of special masters to “perform duties consented to by the 

parties”). 

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not second guess that decision by undertaking a document-by-document review that 

would require it to engage in a function reserved squarely for the Executive.”). 

Nor does the fact that this case has national significance, or great public interest, 

warrant the appointment of a special master in the absence of legal authority justifying 

that appointment, and these interests should give way to the national security exigency 

that the DOJ and FBI recover the records unhampered. 

B. The Presidential Records Act Forecloses the Relief that the 

Former President Seeks. 

Through the PRA, Congress has provided procedures by which a former president 

may raise or challenge a claim of executive privilege for consideration by a subsequent 

administration. See, e.g., 44 U.S.C. §§ 2204(e), 2208(a)–(b). The relief that former 

President Trump seeks in this Court is foreclosed by the PRA. 

Congress enacted the PRA in 1978 “to insure the preservation of and public 

access to the official records of the President.” Presidential Records Act of 1978, Pub. L. 

No. 95–591, 92 Stat. 2523, 2523 (1978); see also H.R. Rep. No. 95–1487 at 5732, 95th 

Cong., 2d Sess. 2 (1978); Armstrong v. Bush, 924 F.2d 282, 287 (D.C. Cir. 1991). To 

carry out this objective, Congress decided that “[t]he United States shall reserve and 

retain complete ownership, possession, and control of Presidential records.” 44 U.S.C. § 

2202. Congress defined “Presidential records” to include any documents created or 

received by a 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), and required that such records be made 

available pursuant to a court-issued warrant subject to any applicable rights, defenses, or 

privileges, 44 U.S.C. § 2205(2)(A).

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Congress also established the method for a former president “to assert any claim 

of constitutionally based privilege against disclosure of a Presidential record” to the 

public by the current Executive Branch. 44 U.S.C. § 2208(b)(1). To do so, a former 

president invoking the PRA must “notify the Archivist [of the United States], the 

Committee on Oversight and Government Reform of the House of Representatives, and 

the Committee on Homeland Security and Governmental Affairs of the Senate of a 

privilege claim.” 44 U.S.C. § 2208(b)(2). The PRA provides that the Archivist must 

then consult with the sitting President to determine whether the sitting President will 

uphold the claim. 44 U.S.C. § 2208(c)(1). If the sitting President decides not to assert 

the claim of privilege, the former President can institute court proceedings. 44 U.S.C. § 

2208(c)(1)(C). And the PRA establishes that “any action” to challenge a privilege 

determination by the Archivist should be brought in the United States District Court for 

the District of Columbia. 44 U.S.C. § 2204(e) (“The United States District Court for the 

District of Columbia shall have jurisdiction over any action initiated by the former 

President asserting that a determination made by the Archivist violates the former 

President’s rights or privileges.”). 

The records seized here—documentary material created or received by the former 

President during his term of office—seem clearly subject to the PRA (of course, Amici

are not privy to anything other than public information about the documents). And the 

former President’s assertion of executive privilege confirms that he views the seized 

records as “Presidential records” subject to the PRA, because executive privilege could 

apply only to such records. See 44 U.S.C. § 2201(2) (defining “Presidential records”). 

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It is not clear that the procedure in Section 2208 of the PRA, which on its face 

governs a challenge to a decision to make Presidential records “public” over a claim of 

executive privilege by a former president, applies to this matter. After all, the seized 

records are not being provided to the “public” but rather to the Executive Branch, at least 

in the first instance. On the other hand, the former President appears to view the 

disclosures at issue here as akin to disclosures to the public, and there is reason to believe 

that Congress did not intend to establish a dispute-resolution framework involving a 

former president that applied only when public disclosure, as opposed to “disclosure” to a 

subsequent administration, was at issue.6

 To the extent the procedures in Section 2208 

apply to a decision to provide records created in one administration to the Executive 

Branch of a subsequent administration, it appears that former President Trump has not 

followed the procedures set forth in Section 2208 of the PRA with respect to the seized 

materials.7 

6

 The text of the PRA may not directly address the scenario at issue here—a former 

president invoking executive privilege to try to prevent disclosure of Presidential 

records for the internal use of a subsequent Executive Branch—because, as discussed 

elsewhere in this brief, it is obvious that executive privilege would not apply in such a 

scenario. 

7

 Former President Trump argues that he has asserted a claim of executive privilege over 

the documents at issue, but it appears he has not followed the prescribed mechanism for 

doing so. He simply proclaimed via social media on August 14, 2022, that executive 

privilege applied to the seized records, despite no indication that he has formally 

asserted an executive privilege claim over those records. See Donald J. Trump 

(@realDonaldTrump), Truth Social (Aug. 14, 2022, 8:22 AM), 

https://truthsocial.com/@realDonaldTrump/posts/108821201066287577. Even if 

former President Trump were deemed to have notified the Archivist that he was 

asserting a claim of executive privilege in April 2022, there is no evidence that he also 

notified the Committee on Oversight and Government Reform of the House of 

Representatives, or the Committee on Homeland Security and Governmental Affairs of 

the Senate as required by statute. See NARA May 10 Letter at 2; 44 U.S.C. § 2208(a)–

(b). 

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Regardless of the extent that Section 2208 applies, however, the former 

President’s motion should be denied based upon Section 2204 of the PRA because this 

motion has been brought in the wrong court. As set forth above, the PRA grants 

jurisdiction for a former president’s challenges to a current president’s rejection of a 

claim of executive privilege in the United States District Court for the District of 

Columbia, not the Southern District of Florida. See 44 U.S.C. § 2204(e). As a result, 

former President Trump seeks to circumvent the statutorily prescribed process Congress 

has laid out for adjudicating his claim of executive privilege against the current Executive 

Branch. Congress has expressly decided that such claims should be resolved in the 

United States District Court for the District of Columbia. 

Amici respectfully submit that this Court should require compliance with the 

statutory scheme in the PRA, and should thus deny the instant motion in order to allow 

the applicable statutory dispute resolution mechanism to operate as Congress expressly 

intended. Cf. Thompson, 573 F. Supp. 3d at 17 (holding that former President Trump’s 

“assertion of privilege is outweighed by President Biden’s decision not to uphold the 

privilege, and the court will not second guess that decision by undertaking a documentby-document review that would require it to engage in a function reserved squarely for 

the Executive.”).8

 

8

 Additionally, former President Trump argues that the documents at issue belong in his 

possession because “the PRA accords the President virtually complete control over his 

records during his term of office.” Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 

1991). While the quote from Armstrong may be accurate, the former President omits 

that his term of office is expired, so his basis for claiming control over the seized 

records no longer exists. Nor would his “control” of the records serve as a basis for 

special master review, particularly where the records were seized pursuant to a dulyissued warrant. 

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II. EVEN IF THERE WAS A LEGAL BASIS FOR APPOINTING A 

SPECIAL MASTER, EXECUTIVE PRIVILEGE CLEARLY DOES 

NOT APPLY TO THE SEIZED RECORDS. 

Even if there was a legal basis for appointing a special master in this case, which 

there is not, that appointment would be unnecessary because executive privilege will not 

apply to any of the seized records as against the Executive Branch. That is because the 

incumbent President has chosen not to assert a claim of executive privilege over the 

records, and the records are sought by the Executive Branch for the purpose of carrying 

out its constitutional functions. 

Even assuming that a former president may, in certain circumstances, assert 

claims of executive privilege against the Executive Branch after leaving office, that claim 

of privilege cannot survive an objection to the claim by an incumbent president. As one 

court, considering another claim of executive privilege raised by former President Trump, 

recently explained: 

“[T]his is a dispute between a former and incumbent 

President. And the Supreme Court has already made clear 

that in such circumstances, the incumbent’s view is 

accorded greater weight. This principle is grounded in ‘the 

fact that the privilege is seen as inhering in the institution 

of the Presidency, and not in the President personally.’ . . . 

Only ‘the incumbent is charged with performance of the 

executive duty under the Constitution.’ . . . And it is the 

incumbent who is ‘in the best position to assess the present 

and future needs of the Executive Branch, and to support 

invocation of the privilege accordingly.’” 

Thompson, 573 F. Supp. 3d at 15–16 (emphasis added). 

Indeed, U.S. courts have long recognized the greater weight accorded to the 

sitting president’s view about a claim of executive privilege raised by a former president. 

See, e.g., Nixon v. Adm’ of Gen. Services, 408 F. Supp. 321, 344–45 (D.D.C. 1976), aff’d, 

433 U.S. 425 (1977) (“For even assuming arguendo that Mr. Nixon may, as a former 

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President, assert executive privilege, such a claim is not as forceful as one raised by an 

incumbent. All of the reasons militating against permitting a former President to assert 

privilege without the support of the incumbent suggest, at the least, that if he is to be 

allowed to do so, such a claim carries much less weight than a claim asserted by the 

incumbent himself.”). This is because the incumbent President is “vitally concerned with 

and in the best position to assess the present and future needs of the Executive Branch, 

and to support invocation of the privilege accordingly.” Nixon, 433 U.S. at 449. 

Therefore, where the incumbent has chosen not to assert that a document is “of the kind 

whose nondisclosure is necessary to the protection of the presidential office and its 

ongoing operation,” the significance of the former President’s assertion as to the same 

document is necessarily “diminished.” Dellums v. Powell, 561 F.2d 242, 248 (D.C. Cir. 

1977) (“The former president’s . . . claim has less significance as an assertion of the 

current needs of the office.”); see also Nixon, 433 U.S. at 449 (“At the same time, 

however, the fact that neither President Ford nor President Carter supports appellant’s 

claim detracts from the weight of his contention that the Act impermissibly intrudes into 

the executive function and the needs of the Executive Branch..”). 

Notably, even those who argue that a former president could successfully assert 

executive privilege over the objection of an incumbent president have explicitly stopped 

short of arguing that the former president’s claim would prevail where “the incumbent 

President believes that the discharge of his constitutional duties (e.g., investigation and 

prosecution of alleged crimes) demands the disclosure of documents claimed by the 

former President to be privileged.” Review of Nixon President Materials Access 

Regulations: Hearing Before the Subcomm. on Gov’t Operations of the H. Comm on 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 17 of 23
16 

Oversight and Gov’t Reform, 99th Cong. 288 (1986) (correspondence with, and materials 

provided by, the National Archives and Records Administration).9

 In other words, there 

is no basis for the claim that a former president’s assertion of executive privilege should 

block a current president from pursuing his constitutional duties. 

Indeed, to allow a former president to use a claim of executive privilege to 

undermine the work of a current president would undermine the very purpose of 

executive privilege: to ensure that the Executive Branch can effectively discharge its 

constitutional powers. U.S. v. Nixon, 418 U.S. 683, 711 (1974) (“[T]o the extent this 

interest relates to the effective discharge of a President’s powers, it is constitutionally 

based.”). 

In this case, it is clear that the dispositive view of the sitting President is that the 

seized materials should be provided to the DOJ and the FBI, regardless of any claim of 

executive privilege by the former President. Specifically, in May 2022, President Biden 

deferred to the determination of the Acting Archivist of the United States regarding the 

application of executive privilege to the fifteen boxes of records returned to NARA 

earlier this year. NARA May 10 Letter at 2. Those records are not materially different 

from the seized records at issue here or in June 2022—all of the records were taken from 

9

 During congressional testimony on this topic, Assistant Attorney General Charles 

Cooper elaborated that, “an incumbent President need not respect a former President’s 

claim of privilege if the incumbent feels that it would interfere with his ability to 

execute his legal and constitutional responsibilities as he, alone, understands and 

perceives them.’” Michael Stern, Assessing Trump’s Claim of ‘Executive Privilege’ on 

FBI Access to MAL Docs, JUST SEC. (Aug. 28, 2022), 

https://www.justsecurity.org/82873/ assessing-trumps-claim-of-executive-privilege-onfbi-access-to-mal-docs/. 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 18 of 23
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the White House by the former President, and he has asserted the same general claim of 

executive privilege over all of them. 

The Acting Archivist, in consultation with the Assistant Attorney General for the 

Office of Legal Counsel, has determined that there is no basis for former President 

Trump’s claim of executive privilege in these circumstances, where “such records contain 

information that is needed for the conduct of current business of the incumbent 

President’s office and that is not otherwise available.” Id. at 3 (noting that the question 

presented “is not a close one”). The Acting Archivist’s analysis stated that access to the 

records was not only necessary for purposes of an ongoing criminal investigation, but 

also to conduct an intelligence community damage assessment. NARA May 10 Letter at 

2–3. This analysis concerned the fifteen boxes previously obtained, but the analysis 

applies equally to the seized records, over which the former President makes identical, 

preemptive assertions of executive privilege. In other words, there is no reason to 

doubt—and every reason to believe—that the Acting Archivist would reach exactly the 

same conclusion with respect to the seized records as with the fifteen boxes previously 

considered. Because the view of the current administration outweighs the view of the 

former President, and because the documents are being sought by the Executive Branch 

in furtherance of a legitimate law-enforcement and intelligence community interest, 

review by a special master would be needless. 

Finally, executive privilege is a qualified form of privilege, and courts have 

analyzed its application by a balancing of interests. See Nixon, 408 F. Supp. at 342 

(internal citations omitted) (“The need for protection of such confidentiality, as deriving 

from the separation of powers, was recognized by the Supreme Court in United States v. 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 19 of 23
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Nixon . . . in the form of a qualified privilege for certain executive communications. Both 

the Supreme Court and the court of appeals in this circuit, however, refused to recognize 

an absolute privilege, . . . instead analyzing with precision in each case how to 

accommodate the confidentiality protected by a qualified privilege to competing needs of 

other branches.”). 

As a result, and even if there were precedent for allowing a former president’s 

assertion of executive privilege to be evaluated by a court notwithstanding the 

incumbent’s objection, former President Trump has failed in his two filings before this 

Court to establish that any interest protected by executive privilege outweighs the 

Executive Branch’s competing interests in access to these materials. Most notably, the 

former President has failed to identify a “specific countervailing need for confidentiality 

tied to the documents at issue, beyond their being presidential communications” and to 

make “particularized showings in justification of his claims of privilege[.]” Thompson, 

20 F. 4th at 38 (quoting Sen. Select Comm. on Pres. Campaign Activities v. Nixon, 498 

F.2d 725, 730 (D.C. Cir. 1974)). 

By contrast, the Executive Branch’s countervailing interest in these materials is 

compelling. The Executive Branch seeks the seized records to pursue a criminal 

investigation of the improper treatment of government records, including records 

containing information classified as “Top Secret,” and to conduct a damage assessment 

and take remedial steps based upon the potential disclosure of those materials.10 ECF No. 

10 The Government represented to the Court on August 29, 2022, that the Office of the 

Director of National Intelligence (“ODNI”) is already conducting its classification 

review of materials recovered pursuant to the search and leading an intelligence 

community assessment of the potential risk to national security resulting from 

disclosure of these records. ECF No. 31 ¶ 5. Given the relatively limited volume of 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 20 of 23
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31 ¶ 4; Search Warrant Affidavit ¶¶ 1–2, 47. These are essential, constitutional functions 

that the Executive Branch cannot adequately perform without access to the seized 

records. And, in particular, there is great urgency in conducting a thorough damage 

assessment of any potential mistreatment of classified materials, which militates against 

the additional delay that would inevitably result from the appointment of a special master 

in this matter. To indulge former President Trump’s assertions of executive privilege 

through the appointment of a special master would simply put off the inevitable, and 

harm significant national interests in the process by delaying a criminal investigation and 

intelligence community assessment of damage. 

CONCLUSION 

For the foregoing reasons, Amici respectfully submit that the Court should deny 

former President Trump’s request to appoint a special master in this matter. 

 

 

records at issue, the exigency of the review, and the unique qualifications necessary for 

a potential special master, it is impracticable and imprudent to interrupt the ODNI’s 

work to appoint a special master. 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 21 of 23
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Dated: August 30, 2022 

/s/ Jay B. Shapiro 

Jay B. Shapiro 

STEARNS WEAVER MILLER 

WEISSLER ALHADEFF &

SITTERSON, P.A. 

150 West Flagler Street, 

Suite 2200 

Miami, FL 33130 

Tel: (305) 789-3229 

jshapiro@stearnsweaver.com 

Norman L. Eisen* 

NORMAN EISEN PLLC 

2000 Massachusetts Avenue NW 

Washington, DC 20036 

Tel: (202) 709-4945 

nleisen@normaneisenllc.com 

Fred Wertheimer* 

DEMOCRACY 21 

2000 Massachusetts Avenue NW 

Washington, DC 20036 

Tel: (202) 355-9600 

fwertheimer@democracy21.org

Respectfully submitted, 

/s/ Brad S. Karp 

Brad S. Karp* 

Roberto Finzi* 

Harris Fischman* 

David K. Kessler* 

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP 

1285 Avenue of the Americas 

New York, NY 10019-6064 

Tel: (212) 373-3000 

bkarp@paulweiss.com 

rfinzi@paulweiss.com 

hfischman@paulweiss.com 

dkessler@paulweiss.com 

Counsel for Amici Curiae 

* Pro hac vice application forthcoming 

 

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 22 of 23
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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on August 30, 2022, a true and correct copy of the 

foregoing document was filed with the Clerk of the Court using the CM/ECF system. I 

also certify that copies of the foregoing document are being served on all counsel of 

record identified on the attached Service List via transmission of the Notice of Electronic 

Filing generated by CM/ECF. 

/s/ Jay B. Shapiro 

Jay B. Shapiro 

SERVICE LIST 

James M. Trusty 

IFRAH, PLLC 

1717 Pennsylvania Avenue, NW, Suite 

650 

Washington, DC 20006 

202-852-5669 

Email: jtrusty@ifrahlaw.com 

Lindsey Halligan 

511 SE 5th Avenue 

Suite 1008 

Fort Lauderdale, FL 33301 

720-435-2870 

Email: lindseyhalligan@outlook.com 

M. Evan Corcoran 

Silverman, Thompson, Slutkin, & White, 

LLC 

400 East Pratt Street, Suite 900 

Baltimore, MD 21230 

410-385-2225 

Email: 

ecorcoran@silvermanthompson.com 

Counsel for Plaintiff Donald J. Trump

Juan Antonio Gonzalez , Jr. 

United States Attorney’s Office - 

H.I.D.T.A. 

11200 NW 20th Street 

Suite 101 

Miami, FL 33172 

305-715-7640 

Fax: 305-715-7639 

Email: juan.antonio.gonzalez@usdoj.gov 

Counsel for Defendant United States of 

America

Case 9:22-cv-81294-AMC Document 41-1 Entered on FLSD Docket 08/30/2022 Page 23 of 23