Via ECF and Courtesy Copy November 10, 2022

Judge Raymond J. Dearie

United States District Court for the 

Eastern District of New York

225 Cadman Plaza East

Brooklyn, N.Y. 11202

RE: Donald J. Trump v. United States of America, Case No. 22-cv-81294-

CANNON 

Dear Judge Dearie:

On November 7, 2022, Your Honor issued a Scheduling Order announcing your 

intent to contact the National Archives and Records Administration (“NARA”) regarding 

its practices and guidance documents concerning the categorization of materials under the 

Presidential Records Act. ECF 164. One way to read the Order is that it contemplates an 

ex parte or in camera contact with a NARA representative. Plaintiff, President Donald J. 

Trump, through the undersigned counsel, files this letter respectfully objecting to a private

contact between the Special Master and NARA. However, Plaintiff does not object to a 

process that allows full transparency and participation by the parties.

Canon 3(A)(4) of the Code of Conduct for United States Judges states that a federal 

judge “should not initiate, permit, or consider ex parte communications or consider other 

communications concerning a pending or impending matter that are made outside the 

presence of the parties or their lawyers.”1 This Canon is an extension of the widely accepted 

principle that the judicial system relies upon vigorous advocacy amongst the parties, rather 

than inquisitorial research by the presiding judicial officer.2

Generally, judicial officers are expected to refrain from relying on information that 

was obtained through their own independent factual research and conducted outside the 

1 See also Model Code of Jud. Conduct r. 2.9(A) (Am. Bar Ass’n 2020); Fed. R. Evid. 201(e) (“[A] party is 

entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.”).

2 See, e.g., Am. Bar Ass’n Formal Op. 478 (Dec. 8, 2017) (“Except for evidence properly subject to judicial 

notice, a defining feature of the judge’s role in an adversarial system is that the judge will ‘consider only 

the evidence presented by the parties.’” (quoting Charles G. Geyh & W. William Hodes, REPORTERS’

NOTES TO THE MODEL CODE OF JUDICIAL CONDUCT 40 (2009))).

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presence of parties to the litigation. Johnson v. United States, 780 F.2d 901, 910 (11th Cir. 

1986) (noting that a trial judge may not “undertake an independent mission of finding 

facts” outside the record). Although judicial officers are not expected to remain completely 

insulated from factual information that is available outside the four walls of a courtroom, 

they must “observe proper limitations on judicial research.” Rowe v. Gibson, 798 F.3d 622, 

628 (7th Cir. 2015). Allowing a judicial officer to conduct unrestricted independent 

research, and to subsequently rely upon that research in rendering decisions, would 

implicate issues of fundamental fairness. See Campbell v. Sec. of Health and Human Servs., 

69 Fed. Cl. 775, 776-77, 781-82 (2006) (finding that a special master’s introduction of 

medical articles obtained from the internet into the record, without the opportunity for a 

hearing, created an “extraordinary risk that [could not] be squared with the Special 

Master’s responsibility for conducting a proceeding consistent with the principles of 

fundamental fairness”).

Indeed, the Seventh Circuit has recognized that there is a difference between mere 

“web searches for facts or other information that judges can properly take judicial notice 

of,” and “web searches for facts normally determined by the factfinder after an adversary 

procedure that produces a district court or administrative record.” Rowe, 798 F.3d at 628.

Thus, while the Court may undertake independent research of issues that are judicially 

noticeable, it should refrain from independently investigating matters of dispute amongst 

the parties. Further, the Court should refrain from conducting such research off the record. 

A similar principle is recognized in the context of arbitration, where courts have found that 

an arbitrator’s ex parte research may serve as grounds to vacate an arbitration award. Airgas 

West, Inc. v. Hawaii Teamsters and Allied Workers, Local 996, No. 12-cv-00454, 2013 

WL 1856076, at *7 (D. Haw. April 20, 2013) (quoting Pac. Reins. Mgmt. Corp. v. Ohio 

Reins. Corp., 935 F.2d 1019, 1025 (9th Cir. 1991) (“Ex parte evidence to an arbitration 

panel that disadvantages any of the parties in their rights to submit and rebut evidence 

violates the parties’ rights and is ground for vacation of an arbitration award.”)).

Under the same logic, judicial officers should avoid ex parte communications with 

individuals providing specialized, expert information within the litigation. See United 

States v. Craven, 239 F.3d 91, 102 (1st Cir. 2001) (noting that a judicial officer’s “ex parte

contacts can create situations pregnant with problematic possibilities”). In Craven, the First 

Circuit reviewed a district court judge’s reliance on information obtained through an ex 

parte conversation with a court-appointed expert with respect to sentencing. Id. at 95. The 

Government appealed the sentence, arguing that (1) the parties were not privy to the court’s

discussion with the expert and (2) the substance of the ex parte conversation was not placed 

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on the record. Id. at 101. In reviewing the sentencing court’s behavior, the First Circuit 

relied on the general principle that “the law frowns upon ex parte communications between 

judges and court-appointed experts.” Id. at 102. According to the First Circuit, “[t]he reason 

is obvious: most ex parte contacts between a trial judge and another participant in the 

proceedings risk harm, and ex parte communications with key witnesses (such as courtappointed experts) are no exception.” Id. Based on these findings, the Court concluded that 

the district court’s ex parte conversation impermissibly “taint[ed] the factual basis” relied 

upon in its sentencing decision. Id.

With these principles in mind, Plaintiff respectfully contends that the Special 

Master should avoid engaging in an ex parte contact or otherwise conducting private 

interviews in this matter. Further, as noted during the initial Status Conference, the Plaintiff 

has deep concerns regarding the political bias of NARA leadership. Accordingly, we must 

object to any contact with NARA that does not allow for the full participation of the parties. 

Plaintiff suggests that a suitable alternative to an in-camera conversation with an 

interested party would be to call a NARA representative to appear at the December 1 status 

conference and provide sworn testimony to the Special Master and the parties. This would 

ensure that the record includes all information developed in such testimony, and it would 

also allow the parties to ask questions of the representative, akin to a deposition. Plaintiff’s 

proposed procedure would appropriately balance the Special Master’s need for information 

with the parties’ interest in testing the reliability and accuracy of that information. 

Thank you for your time and consideration of this matter. 

Sincerely,

James M. Trusty

Ifrah Law PLLC

1717 Pennsylvania Ave. NW, Suite 650

Washington, D.C. 20006

Telephone: (202) 524-4176

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Email: jtrusty@ifrahlaw.com

Christopher M. Kise

Chris Kise & Associates, P.A.

201 East Park Avenue, 5th Floor

Tallahassee, FL 32301

Telephone: (850) 270-0566

Email: chris@ckise.net

Lindsey Halligan

Florida Bar No. 109481 

511 SE 5th Avenue

Fort Lauderdale, FL 33301

Email: lindseyhalligan@outlook.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 

Counsel for Plaintiff Donald J. Trump

CC: Juan Antonio Gonzalez, Jr., juan.antonio.gonzalez@usdoj.gov

Anthony W. LaCosta, anthony.lacosta@usdoj.gov

Julie A. Edelstein, julie.edelstein@usdoj.gov

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