1 

U.S. Department of Justice 

National Security Division 

Counterintelligence and Export Control Section Washington, D.C. 20530

 November 12, 2022 

By ECF and Courtesy Copy 

Judge Raymond J. Dearie 

United States District Court 

 Eastern District of New York 

225 Cadman Plaza East 

Brooklyn, NY 11202 

Re: Donald J. Trump v. United States of America, Case No. 22-81294-CIV-CANNON – 

Annotated Logs of Disputed Documents for Report and Recommendation 

 

Dear Judge Dearie: 

After meeting virtually and pursuant to ECF 125 (at 3-4), the parties “submit to the Special 

Master a log of documents as to which the parties disagree about assertions of privilege or 

categorization under the Presidential Records Act” (the “Scanned Materials Log”). In addition, 

consistent with ECF 162, the government comments on the Filter Materials Log, to which the 

Special Master referred in his order. The balance of this letter 

• explains the organization, coding, and highlighting of the Scanned Materials Log; and 

• analyzes the Filter A and Filter C documents added to the Filter Materials Log 

with a view to helping the Special Master prepare his report and recommendation in the most 

efficient way possible. 

Scanned Materials Log 

The Scanned Materials Log includes all of the Seized Materials scanned into the document 

database. Documents bearing classification markings and potentially privileged documents were 

not scanned. Documents potentially privileged as subject to attorney-client privilege or workproduct immunity were handled by the Filter Team. One potentially privileged document that 

had been scanned was removed from the database (SM_MAL_00001185 to 

SM_MAL_00001195). That document – excluding the one potentially privileged page 

(SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The 

potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, 

which is sent today. 

The Scanned Materials Log is an Excel worksheet that is organized into four sections: 

1. Identifiers (beginning and ending Bates and box numbers), 

Case 9:22-cv-81294-AMC Document 176-1 Entered on FLSD Docket 11/12/2022 Page 1 of 8
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2. Plaintiff’s designations and bases, 

3. Defendant’s designations and bases, and 

4. the Special Master’s decisions and reasoning (if the Special Master wants to 

annotate the Scanned Materials Log for his report and recommendation). 

The Excel worksheet columns appear in the table below. 

1 Identifiers Plaintiff Defendant 

(Government) 

Disp

ute 

stat

us 

Special Master 

2 

Bates/C

ontrol # 

End 

Bates/C

ontrol # 

Box/Co

ntainer 

# 

Docum

ent 

Classifi

cation 

Privil

ege 

Stat

us 

Ba

sis 

Docum

ent 

Classifi

cation 

Privil

ege 

Stat

us 

Ba

sis 

 Docum

ent 

Classifi

cation 

Privil

ege 

Stat

us 

Ba

sis 

3 

The log is similar to a Redfern schedule that is a staple of international commercial arbitrations. 

The Scanned Materials Log highlights the rows with document disputes for the Special Master to 

resolve and color codes those disputes by the nature of the dispute: 

 

• Yellow-highlighted rows identify documents on which the parties disagree as to 

categorization as Presidential records or not based on document-specific issues;1

• Green-highlighted rows identify documents as to which the parties disagree as to 

categorization as Presidential records or not based solely on the decision in Judicial 

Watch v. National Archives and Records Administration, 845 F. Supp. 2d 288 (D.D.C. 

2012), which is the first of the global issues briefed by the parties (ECF 173, at 4-6);2

and 

• Red-highlighted rows identify documents that the parties agree are Presidential records 

but as to which the parties disagree on executive privilege. 

 

The “Dispute Status” column matches the highlighted codes and flags a document (row) as 

“Disputed,” “Disputed - Judicial Watch,” or “Disputed - Executive Privilege.” If the row is not 

highlighted then the document with the Bates numbers in that row is not disputed – that is, the 

parties agree that the document is a Presidential record or not. 

1

 Plaintiff’s counsel would like to note that, to the extent to which the Special Master does not 

concur with Plaintiff’s designations that are marked exclusively “personal,” Plaintiff reserves the 

right to argue such documents are “personal” pursuant to Judicial Watch v. NARA – i.e., that 

these are items generated during the presidency that can be possessed post-presidency and 

effectively deemed “personal.” 

2

 Plaintiff asserts executive privilege over a portion of the green-highlighted documents if the 

Special Master determines them to be Presidential records. The government disagrees with that 

alternative argument for the reasons stated in the global issues brief (ECF 173, at 12-13). 

Case 9:22-cv-81294-AMC Document 176-1 Entered on FLSD Docket 11/12/2022 Page 2 of 8
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The parties agreed on codes for document categorization (as Presidential records or not) and 

privilege status and each coded the scanned documents. For document categorization, each side 

coded the document as a Presidential record or not. Non-Presidential records include personal 

records, evidence labels applied by the FBI in executing the search warrant, and non-records 

(“stocks of publications and stationery” such as unannotated books, magazines, and newspaper 

printouts or clippings and “extra copies of documents produced only for convenience of 

reference” such as the non-digital prints of images by the White House Photographer. 44 U.S.C. 

§ 2201(2)(B)(iii) & (iv)). For privilege status, the use of a code means that a privilege such as 

executive privilege is being asserted by Plaintiff. For executive privilege, the government did not 

code any documents as subject to executive privilege. All of Plaintiff’s assertions of executive 

privilege are therefore disputed. The absence of a code – an empty box – means that the party 

believes that no privilege applies. 

The Excel worksheet has filters so that the Special Master can focus the worksheet view on 

particular groups of documents. For example, the Special Master can filter the documents that 

each side designated as Presidential records, personal records, or in Plaintiff’s case, as 

Presidential records and personal records on the theory that those documents were Presidential 

records but, because they were moved from the White House to Mar-a-Lago, were converted into 

personal records on the authority of Judicial Watch. The Special Master can also filter 

documents by dispute status if he wants to bring up all “Disputes” over which the parties 

disagree as to categorization as Presidential records or not based on document-specific issues, so 

that he can review those documents in the database and record his determination in the Special 

Master section of the Excel worksheet. The Special Master can also bring up all “Disputed - 

Judicial Watch” documents so that, once he makes his report and recommendation on the 

Judicial Watch global issue, he can apply that decision to all of the disputes in the greenhighlighted rows. 

For purposes of the yellow-highlighted Disputes, the Special Master will see that three issues 

account for the overwhelming majority of disputes. From the government’s perspective, the three 

conceptual issues are: 

1. Annotations. – Books, magazine articles, and newspaper clippings with markings are 

original Presidential records. 

2. Thank you notes for presidential acts or events. – Thank you notes reflecting gratitude for 

acts taken in the course of official duties are Presidential records. 

3. Briefing book compilations with indexes. – Briefing material and other work product 

prepared by presidential staff for the President are Presidential records. 

The principles applicable to those three issues are discussed as the second global issue. See ECF 

173, at 7-10. 

Filter Materials Log 

In ECF 162, the Special Master ordered the Filter Team to provide the Case Team nine 

additional Filter A and C documents for categorization as Presidential records or not and 

consideration of executive privilege – namely, Filter Log Documents 5, 8, 10, 12, 13, 19, 20, 21 

Case 9:22-cv-81294-AMC Document 176-1 Entered on FLSD Docket 11/12/2022 Page 3 of 8
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and 22. Portions of three of those nine documents (8, 12, and 13) were previously discussed by 

the government by letter on October 20, 2022 in ECF 150. In addition to those nine Filter A and 

C documents, the Case Team here discusses the non-potentially privileged pages of the scanned 

document, SM_MAL_00001185 to SM_MAL_00001195 (excluding the one potentially 

privileged page SM_MAL_00001190, which is the subject of a separate letter from the Filter 

Team to the Special Master today). 

In light of the overlap between the first and second tranches of Filter Documents, the government 

supplements the table it provided in ECF 150 with the ten additional documents. The 

government also updates the original yellow highlighting in the ECF 150 table to identify the 

additional disputes identified by Plaintiff in ECF 153. The consolidated supplement to the Filter 

Materials Log appears in the table below, with disputes from the first tranche previously briefed 

in yellow and disputes on the ten documents in green (Filter Log Documents 5, 8, 10, 12, 13, 19, 

20, 21 and 22 and SM_MAL_00001185 to SM_MAL_00001195 excluding 

SM_MAL_00001190). 

Filter Document Log Reference 

Number

Filter Bates 

Number(s)

Document 

Categorization 

Privilege Status 

(Executive Privilege Only)

1 A-001 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

2 A-002 to A003 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

3 A-004 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

4 A-005 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

5 A-006 to A016 Agreed 

Plaintiff: personal 

records 

Government: 

personal records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

6 A-017 to A018 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

Case 9:22-cv-81294-AMC Document 176-1 Entered on FLSD Docket 11/12/2022 Page 4 of 8
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Filter Document Log Reference 

Number

Filter Bates 

Number(s)

Document 

Categorization 

Privilege Status 

(Executive Privilege Only)

7 A-019 to A020 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

8 (portion) A-021 to A022 and A025 to A-026 Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

[UPDATED] Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

8 (portion) A-023 to A024 Dispute 

Plaintiff: personal 

records (Judicial 

Watch) 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

9 A-029-A-030 [UPDATED] 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

10 A-031 to A032 Dispute 

Plaintiff: personal 

records (Judicial 

Watch) 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

11 A-033 [UPDATED] 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

12 (portion) A-034 to A035 Dispute 

Plaintiff: personal 

records (Judicial 

Watch) 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

12 A-036 to 

A040 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

[UPDATED] Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

(N.B. Part of document 12 

was withheld from the 

Case 9:22-cv-81294-AMC Document 176-1 Entered on FLSD Docket 11/12/2022 Page 5 of 8
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Filter Document Log Reference 

Number

Filter Bates 

Number(s)

Document 

Categorization 

Privilege Status 

(Executive Privilege Only)

government Case Team 

because Plaintiff claims 

attorney-client privilege and 

work product immunity)

13 (portion) A-041 to A042 Dispute 

Plaintiff: personal 

records (Judicial 

Watch) 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

13 A-043 to 

A052 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

[UPDATED] Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

(N.B. Part of document 13 

was withheld from the 

government Case Team 

because Plaintiff claims 

attorney-client privilege and 

work product immunity)

14 A-053 Agreed: personal 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

15 A-054 Agreed: personal 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no Executive 

privilege 

16 A-055 Agreed: personal 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no Executive 

privilege 

17 A-056 to A058 Agreed: personal 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

19 A-065 to A091 Agreed 

Plaintiff: personal 

records 

Government: 

personal records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

20 A-092 to A098 Agreed 

Plaintiff: personal 

records 

Government: 

personal records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

21 A-099 to A137 Agreed 

Plaintiff: personal 

records 

Government: 

personal records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

22 C-001 Dispute 

Plaintiff: personal 

records 

Agreed: no claim of 

Executive Privilege by 

Plaintiff 

Case 9:22-cv-81294-AMC Document 176-1 Entered on FLSD Docket 11/12/2022 Page 6 of 8
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Filter Document Log Reference 

Number

Filter Bates 

Number(s)

Document 

Categorization 

Privilege Status 

(Executive Privilege Only)

Government: 

Presidential 

records 

SM_MAL_00001185 to 

SM_MAL_00001195 excluding 

SM_MAL_00001190, which is the 

subject of a separate letter from 

the Filter Team 

Dispute 

Plaintiff: personal 

records 

Government: 

Presidential 

records 

Dispute 

Plaintiff: Executive privilege 

Government: no privilege 

against Executive Branch 

The balance of this letter discusses the government’s position on six of the ten documents – the 

ones on which the parties disagree – namely, Filter Log Documents 8, 10, 12, 13, 22, and 

SM_MAL_00001185 to SM_MAL_00001195 excluding SM_MAL_00001190. The parties 

agree on Filter Log Documents 5, 19, 20, and 21. Accordingly, those four documents will not be 

discussed. 

Filter Log Document 8 (portion) (A-023 to A-024) and 

Filter Log Document 10 (A-031 to A-032) 

 Filter Log Document 12 (portion) (A-034 to A-035) 

 Filter Log Document 13 (portion) (A-041 to A-042) 

The four bullet-pointed commutation analyses are Presidential records because they relate to the 

President’s “Power to grant Reprieves and Pardons for Offences against the United States, except 

in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. The four analyses were received by 

Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his 

personal capacity. Plaintiff relies on Judicial Watch to “deem” the Presidential records to be 

personal records, but the dicta in that non-binding district court decision provide no authority to 

automagically recharacterize documents that are “Presidential records” within the meaning of the 

Presidential Records Act, 44 U.S.C. § 2201(2). See ECF 173, at 4-6 (global issues brief). 

The four commutation analyses cannot be withheld from the Executive Branch on a claim of 

executive privilege because, among other reasons, Plaintiff may not assert the Executive 

Branch’s privilege to withhold documents from itself. See ECF 173, at 12-13 (global issues 

brief). 

 Filter Log Document 22 (C-001) 

The printed e-mail message post-dates Plaintiff’s term in office and is therefore personal. 

Because the correspondence post-dates Plaintiff’s administration, the content cannot be in 

furtherance of official duties and therefore cannot be subject to a claim of executive privilege. 

 SM_MAL_00001185 to SM_MAL_00001195 excluding SM_MAL_00001190 

This document is a compilation that includes three documents that post-date Plaintiff’s term in 

office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because 

Case 9:22-cv-81294-AMC Document 176-1 Entered on FLSD Docket 11/12/2022 Page 7 of 8
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Plaintiff can only have received the documents bearing classification markings in his capacity as 

President, the entire mixed document is a Presidential record. 

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual 

documents, none of the remaining communications in the document are confidential presidential 

communications that might be subject to a claim of executive privilege. Three communications 

are from a book author, a religious leader, and a pollster. The first two cannot be characterized as 

presidential advisers and all three are either dated or by content occurred after Plaintiff’s 

administration ended. 

Thank you for your consideration. 

Respectfully submitted, 

 

 JUAN ANTONIO GONZALEZ 

 UNITED STATES ATTORNEY 

 MATTHEW G. OLSEN 

 Assistant Attorney General 

 By: /s/ 

 JAY I. BRATT 

 Chief 

 JULIE EDELSTEIN 

 Deputy Chief 

 STEPHEN MARZEN 

 Trial Attorney 

 Counterintelligence and Export Control Section 

 National Security Division 

 Department of Justice 

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