1

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.

________________________________/

PLAINTIFF DONALD J. TRUMP’S PRINCIPAL BRIEF TO THE

SPECIAL MASTER ON GLOBAL ISSUES

Pursuant to the Special Master’s Order dated October 26, 2022, ECF 162, Plaintiff, 

President Donald J. Trump, through the undersigned counsel, files this letter brief on the 

“global issues” pertaining to the Special Master’s review in this matter.

Following the review of the documents at issue, the parties identified the following 

five “Global Issues” to brief before the Special Master review the materials seized from 

President Trump’s residence at Mar-a-Lago:

- Whether Plaintiff may designate records created or received during his administration 

as personal documents during or after his term in office;

- Whether certain groups of documents (e.g., pardon packages) are Presidential records;

- Whether categorization of a document as a personal record means that it cannot be 

claimed by a former officeholder as subject to a claim of executive privilege;

- Whether Plaintiff may assert executive privilege to withhold seized materials from the 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 1 of 21
2

government notwithstanding the four reasons and footnote in the government’s letter 

with respect to the 15 Filter A documents filed on October 20, 2022; and

- Whether Plaintiff should be required to file a declaration or affidavit regarding the 

government’s inventory as set forth in ECF 118, at 1-2.

ECF 161-1 at 1. This brief addresses each matter in turn.

DISCUSSION

I. The Presidential Records Act authorizes a sitting President to designate records as 

personal records during his term in office.

The Special Master has directed the Parties to brief the issue of “[w]hether Plaintiff 

may designate or convert Presidential records to personal ones during or after his term in 

office.” ECF 161-1.

As Plaintiff has explained in prior briefing, all government records are subject to either 

the Federal Records Act (“FRA”) or the Presidential Records Act (“PRA”). “[N]o 

individual record can be subject to both statutes because their provisions are inconsistent.” 

Armstrong v. Exec. Office of the President, 1 F.3d 1374, 1293 (D.C. Cir. 1993) (“Armstrong II”) 

(“The FRA defines a class of materials that are federal records subject to its provisions, and 

the PRA describes another, mutually exclusive set of materials that are subject to a different, 

less rigorous regime.”).

The PRA specifies a further distinction between Presidential records and personal 

records, requiring that “all material produced or received by the President, ‘to the extent 

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

receipt and be filed separately.” Judicial Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. 

Supp. 2d 288, 291 (D.D.C. 2012) (quoting 44 U.S.C. § 2203(b)); see also 44 U.S.C. § 2201(2)-

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 2 of 21
3

(3). The reason for this distinction is that the PRA pertains to the ownership, retention, or 

archiving of only Presidential records and not personal records.1

The question now before the Special Master is therefore whether a President has the 

authority to decide whether a document is a “Presidential record” or a “personal record.” 

Both the plain language of the PRA and past court decisions answer this question in the 

affirmative.

As a general matter, the PRA tasks the President—and the President alone—with 

“tak[ing] all such steps as may be necessary” to ensure the proper documentation of the 

Presidency according to the law. 44 U.S.C. § 2203(a). Pursuant to that obligation, the PRA 

further requires that “materials produced or received by the President . . . shall, to the extent 

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

receipt . . . .” Id. § 2203(b).

The Judicial Watch decision provides an important model for the present case. There, 

the U.S. District Court for District of Columbia assessed the designation of Clinton 

Administration records. President Bill Clinton had engaged a historian to help create an 

“oral history” of his administration, and the historian recorded several dozen audiotapes of 

both conversations with President Clinton and his real-time participation in events while 

Clinton was acting as President (such as official telephone calls). Judicial Watch, 845 F. Supp. 

1 The PRA defines “Presidential records” to mean “documentary materials . . . created or received 

by the President [or the President’s staff] in the course of conducting activities which relate to or 

have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial 

duties of the President.” 44 U.S.C. § 2201(2). The term does not include “personal records,” 

which the statute defines to mean “all documentary materials . . . of a purely private or nonpublic 

character which do not relate to or have an effect upon the carrying out of the constitutional, 

statutory, or other official or ceremonial duties of the President.” Id. § 2201(3). 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 3 of 21
4

2d at 290. President Clinton retained the tapes and did not deliver them to the National 

Archives and Records Administration (“NARA”). Id. Instead, according to public reports, 

President Clinton stored the tapes in his sock drawer. 2 A non-profit organization 

subsequently sued in federal court, arguing that the tapes documented official Presidential 

business and thus were Presidential records under the PRA. Id. at 290-91.

Interpreting the PRA, the court stated, “[t]he only reference in the entire statute to the 

designation of records as personal versus Presidential . . . calls for the decision to be made by 

the executive.” Judicial Watch, Inc., 845 F. Supp. 2d at 300-01. “Under the statute, this 

responsibility is left solely to the President.” Id. at 301. Therefore, according to the Judicial 

Watch court, in allocating this responsibility to the President, the PRA neither obligates nor 

permits the Archivist to make initial designation decisions or to take control of records that 

the President has designated as personal records. See Id. at 291, 300-01.

The PRA, then, is clear: a President determines whether a document constitutes a 

Presidential record or a personal record.

In this instance, President Trump exercised that authority. As an initial matter, the 

PRA recognizes the President’s authority to make this decision, and when that decision is 

made, it is not subject to challenge. There is no authority whatsoever for the notion that the 

Government can seize documents from a President, and simply declare that they are 

Presidential records. 

Furthermore, Plaintiff is not referencing any authority to designate documents as 

2 CBS News, “Clinton’s Secrets In His Sock Drawer” (Sept. 6, 2007), 

https://www.cbsnews.com/news/clintons-secrets-in-his-sock-drawer/.

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 4 of 21
5 

Presidential records or personal records “after his term in office.” Rather, Plaintiff was 

authorized to—and did in fact—designate the seized materials as personal records while he 

served as President. President Trump was still serving his term in office when the documents 

at issue were packed, transported, and delivered to his residence in Palm Beach, Florida.3

 

Thus, when he made a designation decision, he was President of the United States; his 

decision to retain certain records as personal is entitled to deference, and the records in 

question are thus presumptively personal. 

The contents of the seized materials underscore the fact that President Trump treated 

these papers as personal records. The documents seized from Mar-a-Lago included 

 However, the Special Master has not been tasked with assessing the 

correctness of President Trump’s designations. In other words, it is the President’s 

designation—not the appearance or content of a given document—that is determinative. 

And as demonstrated by the Judicial Watch decision, President Trump need not put 

forth documentary evidence of his designation decisions, because his conduct unequivocally 

confirmed that he was treating the materials in question as personal records, rather than 

Presidential records. In Judicial Watch, President Clinton had declined to supply the records 

at issue to the National Archives and Records Administration (“NARA”). Judicial Watch, 

3 See Patricia Mazzei and Julia Echikson, Trump has arrived in Palm Beach to begin life as a 

private citizen, The New York Times (Jan. 20, 2021), available at 

https://www.nytimes.com/2021/01/20/us/trump-palm-beach.html (last accessed November 7, 

2022). 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 5 of 21
6

845 F. Supp. 2d at 301. The court did not conduct a searching review of when or why 

President Clinton opted for that course of action; instead, it merely noted that he had not 

provided the records to NARA, as would have been necessary had President Clinton 

designated them as Presidential records, and observed that NARA “decline[d] to revisit the 

President’s classification decision.” Id. As in that case, President Trump’s “classification 

decision” between Presidential and personal was made through action: his decision not to 

supply the records to NARA confirms that he treated them as personal records. And to 

reiterate, President Trump took this course of action while he was in office.

Once the President makes such a designation decision, the PRA contemplates one 

avenue for further review: civil litigation initiated by NARA challenging the guidelines or 

process utilized in a given designation decision. Prior courts have determined that the PRA 

precludes judicial review of a President’s creation, management, or disposal decisions. See 

Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991) (“Armstrong I”) (“[T]he PRA precludes 

review of the President’s recordkeeping practices and decisions.”). The statute “accords the 

President virtually complete control over his records during his term of office,” to the extent, 

for example, that “neither the Archivist nor the Congress has the authority to veto the 

President’s disposal decision.” Id.; see also Citizens for Responsibility and Ethics in Washington v. 

Cheney, 593 F. Supp. 2d 194, 198 (D.D.C. 2009) (noting that, in enacting the PRA, Congress 

“limited the scope of judicial review and provided little oversight authority for the President 

and Vice President’s document preservation decisions”).

Critically, the PRA does not give either the Archivist or any other official free rein to 

pursue criminal enforcement. Instead, the PRA identifies one specific mechanism for 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 6 of 21
7

enforcing the law: civil litigation initiated by NARA. See Judicial Watch, Inc., 845 F. Supp. 2d 

at 302; see also 44 U.S.C. §§ 2112, 3106; Armstrong v. Exec. Office of the President, 1 F.3d 1274, 

1294 (D.C. Cir. 1993) (noting that the “guidelines describing which existing materials will be 

treated as presidential records in the first place are subject to judicial review”).

In sum, the PRA offers a comprehensive structure concerning the designation of 

documents, in which the decision of a President during that President’s term is subject to 

complete deference and limited judicial review. The law identifies one official who is 

authorized to designate documents as Presidential or personal—the sitting President during 

whose term the documents in question originated or were received. The PRA identifies one 

mechanism for challenging the process utilized in making a President’s designation 

decision—a civil lawsuit.

If the process utilized by a President is allegedly defective, the PRA spells out the 

remedy: instead of initiating a criminal investigation and executing a search warrant, the 

Government should simply have availed itself of this process, namely, by filing a civil action 

seeking to challenge the process by which President Trump designated the records as personal. 

In any case, President Trump’s designation decisions made during his term of office cannot 

possibly form the basis for any criminal investigation—to the extent those decisions are 

subject to challenge under the PRA, that is an entirely civil matter.

The Government is likely to posit that such authority on the part of the President is 

inconsistent with the PRA’s function as an effective archiving device. But in reaching her 

conclusion in Judicial Watch, Judge Amy Berman Jackson raised particularly important 

questions addressing the nature of the President’s authority under the statute.

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 7 of 21
8

At oral argument, Judge Berman Jackson asked counsel for the Government, “What 

is to prevent a President from frustrating the balance that the statute was trying to strike 

between his privacy and public access . . . ? Let’s say a President kind of maliciously 

overclassifies, what is the remedy?” Judicial Watch, Inc. v. Nat’l Archives and Records Admin, 

No. 1:10-cv-01834 (D.D.C.), ECF 14 at 13 (“Judicial Watch Transcript”). In that instance, 

the Government appropriately responded that the PRA contemplates one avenue for 

challenging a designation decision—the process set forth under 44 U.S.C. §§ 2112 and 3106. 

Id.; see also Judicial Watch, Inc., 845 F. Supp. 2d at 302. In the Government’s words, that 

remedy is “what Congress chose, and that’s the remedy the Court is bound by.” Judicial 

Watch Transcript at 13. Alternatively, the Government noted that “if Congress believes that 

a President is wildly misclassifying information, it can pass a law to change the statutory 

structure . . . .” Id. at 15. Indeed, just yesterday, lawmakers in the U.S. House of 

Representatives introduced a new law—the “Presidential Records Certification Act”—that 

would require executive officials to attest to their compliance with the Presidential Records 

Act on a regular schedule.4

The Government’s position in this matter is diametrically opposed to its approach in 

Judicial Watch. There, the Government asserted the President’s authority to designate 

documents as personal, acknowledged President Clinton’s de facto designation decision, and 

stressed that the PRA does not support any avenue for challenging such a decision other than 

civil litigation initiated by the Archivist. Here, the Government wrongfully charges that 

4 See House Committee on Oversight and Reform, “Chairwoman Maloney Introduces 

Legislation to Strengthen the Presidential Records Act” (Nov. 7, 2022), 

https://oversight.house.gov/sites/democrats.oversight.house.gov/files/MALONE_250_xml.pdf.

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 8 of 21
9

President Trump lacked designation authority, did not make a designation decision, and 

should be compelled to return the materials via a criminal process with no relevance to the 

applicable statutes.5 In addition to being inconsistent, the Government’s approach is not 

sustainable under the PRA. Plaintiff had authority to designate the materials in question as 

personal records and did so, and any remedy must arise under the PRA.

Finally, the parties have also been directed to brief the matter of “[w]hether certain 

groups of documents (e.g., pardon packages) are Presidential records.” ECF 161-1 at 1. 

There is no basis to conclude that any of the materials transported to Mar-a-Lago are 

Presidential records. As described above, once a President has designated a record as 

personal – as happened here – the inquiry ends regardless of the content of a given document. 

As discussed, to the extent NARA disagrees with the process of designation, its remedy is to 

bring a civil lawsuit.

II. President Trump can assert—and has properly asserted—executive privilege as to 

certain documents.

The Special Master has directed the parties to brief two matters related to executive 

privilege: first, “[w]hether categorization of a document as a personal record means that it 

5 The doctrine of judicial estoppel is an equitable doctrine that “prevents a party from asserting a 

claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous 

proceeding.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal quotation marks 

omitted) (quoting 18 Moore’s Federal Practice § 134.30, p.134-62 (3d ed. 2000)). Accordingly, 

under the doctrine, a party may not play “fast and loose” with the courts by “deliberately changing 

positions according to the exigencies of the moment.” Id. (quoting United States v. McCaskey, 9 

F.3d 368, 378 (CA5 1993)); Scarano v. Central R. Co., 203 F.2d 510, 513 (C.A.3. 1953). Under 

these equitable principles, the Government should not be permitted to maintain its current position 

that Plaintiff lacked designation authority under the PRA. This position directly contradicts the 

arguments previously asserted by the Government in Judicial Watch. 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 9 of 21
10

cannot be claimed by a former officeholder as subject to a claim of executive privilege,” and 

second, “[w]hether Plaintiff may assert executive privilege to withhold seized materials from 

the government notwithstanding the four reasons and footnote in the government’s letter with 

respect to the 15 Filter A documents filed on October 20, 2022.” ECF 161-1 at 1.

Generally, the Special Master need not reach these issues: Plaintiff designated the 

materials as personal records under the PRA. The Government’s course of action is wholly 

deficient, circumventing the PRA’s avenues for relief and opting for the unprecedented and 

extreme measure of enforcing a criminal search warrant on a former President. It would, 

accordingly, be unnecessary for the Special Master or the district court to further parse the 

materials for which Plaintiff properly claimed executive privilege.

However, even if the Special Master were to reach the privilege issue, the Special 

Master should further conclude that Plaintiff can nonetheless assert—and has properly 

asserted—executive privilege with respect to some of those documents.

The concept of executive privilege flows from the authorities vested in the President 

by Article II of the Constitution. Nixon v. Sampson, 389 F.Supp. 107, 148 (D.D.C. 1975) 

(“Executive privilege is founded upon the public interest in the effective performance of the 

constitutional powers and duties assigned to the Executive Branch.”). The Framers of the 

Constitution recognized the importance of protecting information held by the country’s 

executives, even before the privilege had formal title. In re Sealed Case, 121 F.3d 729, 736 

(D.D.C. 1997). For example, early courts ruled that executive actors retained the right to 

withhold documents that might reveal military secrets, the identity of government informers, 

and even information related to pending investigations. Id. at 736-37 (internal citations 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 10 of 21
11

omitted). 

More recently, the Supreme Court has explicitly recognized the importance of 

protecting the information exchanged between “high Government officials and those who 

advise and assist them in the performance of their manifold duties.” United States v. Nixon, 418 

U.S. 683, 705 (1974). Accordingly, the executive privilege recognizes the “right of the 

President and high-level executive branch officers to withhold information from Congress, 

the courts, and ultimately public.” Mark J. Rozell, Executive Privilege and the Modern Presidents: 

In Nixon’s Shadow, 83 Minn. L. Rev. 1069, 1069-70 (1999).

In particular, the courts recognize two forms of executive privilege: the deliberative 

process and the presidential communications privilege. The deliberative process privilege 

“protects the deliberations and decision[-]making process of executive officials generally.” In 

re Sealed Case, 121 F.3d at 735. In order for the deliberative process privilege to be invoked 

two requirements must be met: (1) the material must be pre-decisional; and (2) the material 

must be deliberative. Id. at 737. These requirements stem from the privilege’s ultimate 

purpose—to “prevent injury to the quality of agency decisions” by ensuring that government 

officials are free to debate alternative approaches in private. N.L.R.B. v. Sears Roebuck & Co., 

421 U.S. 132, 151 (1975); see also Nixon, 418 U.S. at 705 (noting that “[h]uman experience 

teaches that those who expect public dissemination of their remarks may well temper candor 

with a concern for appearances . . . to the detriment of the decision[-]making process”). 

The Supreme Court has also recognized the importance of protecting communications 

between “high Government officials and those who advise and assist them in the performance 

of their manifold duties.” Nixon, 418 U.S. at 705. Thus, the presidential communications 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 11 of 21
12

privilege protects from disclosure (1) communications that are made by the President directly 

and (2) communications made by his immediate advisors in the Office of the President. See

Nixon, 418 U.S. at 708 (“A President and those who assist him must be free to explore 

alternatives in the process of shaping policies and making decisions, and to do so in a way 

many would be unwilling to express except privately.”); see also Nixon v. Adm’r of Gen. Servs., 

433 U.S. 425, 450 (1977) (“Nixon v. AGS” or “AGS”) (recognizing that the presidential 

communications privilege applies to communications made “in performance of the 

president’s responsibilities of his office, in the process of shaping policies, and making 

decisions” (internal quotations omitted)). This privilege, while not absolute, also encompasses 

“communications made by presidential advisers in the course of preparing advice for the 

President . . . even when these communications are not made directly to the President” and 

“communications authored or received in response to a solicitation by members of a 

presidential adviser’s staff.” In re Sealed Case, 121 F.3d at 752. The presidential 

communications privilege is considered a “presumptive privilege” because it is “is 

fundamental to the operation of Government[.]” Nixon, 418 U.S. at 708.

Here, Plaintiff does not contend that documents marked as “personal” should be 

simultaneously protected by executive privilege.6 Rather Plaintiff raises executive privilege as 

an alternative basis for non-disclosure. Specifically, even if the Court were to disagree with 

6 The Government’s first argument against the assertion of executive privilege pertains to 

documents that the Government agrees are personal records. ECF 150 at 5. But the 

Government’s acknowledgment of this fact appears to be based on a flawed interpretation of the 

PRA. Designating documents as Presidential or personal is not a matter of reviewing the 

documents; rather, outside the context of litigation brought by NARA, the only individual with 

authority to designate documents is the sitting President during whose presidency the documents 

were originated or were received.

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 12 of 21
13

President Trump and conclude that he did not have the authority to designate the documents 

at issue as personal under the PRA, which would contravene the law and settled precedent, 

the documents still may not be utilized by the Government because they are privileged. 

Simply put, assuming arguendo that the documents were not designated as personal 

documents during Plaintiff’s presidency, they should be considered Presidential documents 

shielded by executive privilege. With this framework in mind, Plaintiff asserts the following 

in response to the Global Issues raised by the parties. 

A. Plaintiff, as a former President, maintains the power to assert executive privilege.

In its letter dated October 20, 2022, the Government suggests that Plaintiff cannot 

assert the deliberative process privilege. ECF 150 at 5. But substantial precedent indicates 

that President Trump has the authority to exercise this privilege.

First, the Supreme Court has explicitly rejected the notion that a former president may 

not invoke the presidential communications privilege to shield communications that occurred 

during his Presidency. Nixon v. AGS, 433 U.S. at 439 (“We reject the argument that only an 

incumbent President may assert such claims [of executive privilege.”). In fact, in his Order 

denying review of an application for stay of mandate and injunction, Justice Kavanaugh 

wrote that “[a] former President must be able to successfully invoke the [p]residential 

communications privilege for communications that occurred during his Presidency . . . 

[because] concluding otherwise would eviscerate the executive privilege for [p]residential 

communications.” Trump v. Thompson, 211 L.E.2d 579, 680 (2022). In doing so, Justice 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 13 of 21
14

Kavanaugh expressly rejected a decision of the U.S. Court of Appeals for the D.C. Circuit 

reasoning that “a former President may not successfully invoke the [p]residential 

communications privilege for communications that occurred during his Presidency, at least if 

the current President does not support the privilege claim.” Id.

Although Justice Kavanaugh’s Order explicitly addressed only the presidential 

communications privilege, his reasoning extends to a former President’s assertion of the 

deliberative process privilege. The fundamental reasons for the presidential communications 

privilege—i.e., the need for candor in the President’s decision-making processes—also

underlie the deliberative process privilege. Both privileges are premised on the notion that 

continuing confidentiality is necessary to “prevent injury to the quality of agency decisions” 

by ensuring that government officials are free to debate alternative approaches in private. Sears 

Roebuck, 421 U.S. at 151. As noted by Justice Kavanaugh, the failure to recognize a former 

President’s assertion of the presidential communications privilege would undermine the 

important purposes served by the doctrine. Similarly, the refusal to recognize a former 

president’s assertion of the deliberative process privilege would result in evisceration of the 

privilege’s protection. Simply put, the candor with which a President conducts internal 

deliberations would be severely inhibited by the threat that those processes could be disclosed 

to the public by the President’s successor. 

The Supreme Court recognized these principles in Nixon v. AGS, in which the Supreme 

Court adopted the Solicitor General’s argument that protection of a former President’s 

assertion of executive privilege is essential to the democratic process. 433 U.S. at 448-49. In 

support of this argument, the Solicitor General explained the following:

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 14 of 21
15

Unless he can give his advisers some assurance of confidentiality, a President 

could not expect to receive the full and frank submissions of facts and opinions 

upon which effective discharge of his duties depends. The confidentiality 

necessary to this exchange cannot be measured by the few months or years 

between the submission of the information and the end of the President's 

tenure; the privilege is not for the benefit of the President as an individual, but 

for the benefit of the Republic. Therefore the privilege survives the individual 

President's tenure.

Id. (quoting Br. for Federal Appellees 33).

Although the Court in that case ultimately rejected the former President’s claim of 

executive privilege given the “limited intrusion” imposed by the requirements of the nowsuperseded Presidential Recordings and Materials Preservation Act, it nevertheless 

recognized the importance of a former president’s ability to assert executive privilege. Id. at 

449. Nowhere in its opinion did the Court draw a line distinguishing the presidential 

communications privilege from the deliberative process privilege. 

B. Plaintiff may assert a claim of executive privilege against the executive 

branch.

In its October 20 letter, the Government also asserts that “Plaintiff may not assert the 

Executive Branch’s privilege to withhold documents from itself.” ECF 150 at 5; see also ECF 

48 at 23 (interpreting Nixon v. AGS to stand for the proposition that “a former President may 

not successfully assert executive privilege ‘against the very Executive Branch in whose name 

the privilege is invoked’” (quoting Nixon v. AGS, 433 U.S. at 447-48)). The Government’s 

argument is misplaced, because it relies on cherry-picking of language from the Nixon opinion 

without including the required context. Accordingly, the Government’s reliance on Nixon v. 

AGS is inapposite, and the President may assert executive privilege against other members or 

agencies of the executive branch.

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 15 of 21
16

In Nixon v. AGS, the Court addressed the constitutionality of the Presidential 

Recordings and Materials Preservation Act (the “Act”), which directed an official of the 

executive branch to take custody of former president Nixon’s presidential papers and tape 

recordings in order to (1) promulgate regulations that provided for the orderly processing and 

screening of the materials and (2) determine the terms and conditions upon which public 

access may eventually be had to those materials. 433 U.S. at 429. The Court rejected President 

Nixon’s argument that the Act violated the separation-of-powers doctrine, noting that such 

an argument would succeed only when congressional action “prevents the Executive Branch 

from accomplishing its constitutionally assigned functions.” Id. at 443. The Court held that 

because the Act provided for review of the materials by a member of the executive branch, it 

was “clearly less intrusive” than screening of the documents by Congress or some outside 

agency. Id. at 444.

Importantly, Nixon v. AGS does not stand for the proposition that a former president 

may not assert a claim of executive privilege against the executive branch. Rather, the case 

merely addressed whether President Nixon’s separation-of-powers argument could succeed 

when the statute at issue required only limited intrusion into the executive branch’s function 

by another member of the executive branch. 

The facts of In re Sealed Case are more analogous to those at issue here. 121 F.3d 729. 

In that case, the Office of Independent Counsel (“OIC”) subpoenaed the White House 

Counsel, seeking documents pertaining to the White House Counsel’s investigation of the 

former Secretary of Agriculture. 121 F.3d at 734-35. The White House Counsel responded to 

the subpoena but asserted executive privilege with regard to 84 documents. Id. at 735. The 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 16 of 21
17

court concluded that the presidential privilege applied to the subpoenaed documents authored 

by the White House Counsel and, accordingly, permitted the White House Counsel’s 

assertion of executive privilege against the OIC. Id. at 757-58. Although the court ultimately 

found that the OIC demonstrated a “sufficient showing of need to obtain certain information 

in some of the documents,” the case illustrates the bounds within which a member of the 

executive branch may assert executive privilege. Id. at 757. 

Although executive privilege is an important tool in preserving the independence of 

each branch of government pursuant to the doctrine of separation of powers, it is not limited 

to that purpose as the Government contends. In re Sealed Case illustrates that there is no 

prohibition against an executive’s assertion of privilege during an investigation authorized by 

the Department of Justice. Rather, the purpose of the executive privilege is to preserve the 

confidentiality of executive deliberations—regardless of who seeks access to the privileged 

information. To hold otherwise would undermine a President’s critical need to have candid 

deliberations in the turbulent waters of presidential decision-making. 

C. The Government has not demonstrated a specific need that would overcome 

Plaintiff’s assertion of privilege.

Although crucial to the executive branch’s decision-making processes, executive 

privilege is neither absolute nor unqualified. Nixon, 418 U.S. at 706. Rather, the Supreme 

Court has recognized that the privilege must “yield to the demonstrated, specific needs for 

evidence in a pending criminal trial.” Id. at 713. In providing this standard, the Supreme Court 

clarified that in order to overcome an assertion of executive privilege, the party seeking the 

privileged material must “clear three hurdles: (1) relevancy; (2) admissibility; and (3) 

specificity.” Nixon, 418 U.S. at 700. The Supreme Court again affirmed this standard in Cheney 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 17 of 21
18 

v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 386 (2004). 

Currently, the affidavit in support of the search warrant which authorized the search 

of Mar-a-Lago is under seal, and, therefore, inaccessible to Plaintiff. Plaintiff is therefore 

unaware of the specific arguments relied upon by the Magistrate in issuing the warrant 

authorizing seizure of the documents at issue. Given that, Plaintiff must take the position that 

the Government has failed to clear the three hurdles articulated by the Court in Nixon. 

Given the circumstances, Plaintiff will reserve further argument until after it has 

received the Government’s briefing on the global issue. 

III. Plaintiff should not be required to submit a declaration concerning the 

Government’s itemized receipt at this stage. 

Finally, the Special Master has directed the parties to address “[w]hether Plaintiff 

should be required to file a declaration or affidavit regarding the government’s inventory.” 

ECF 161-1 at 1. In short, there is no basis for requiring Plaintiff to submit such a declaration. 

The Government conducted a sweeping, overly broad search of Plaintiff’s property 

and seized a host of materials, including (as noted)

 Given that the Government possessed the materials, it made sense for the 

Government to describe the contents of the seized items, as demonstrated in the series of 

inventories filed pursuant to Rule 41(f) of the Federal Rules of Criminal Procedure. Plaintiff, 

on the other hand, does not possess these materials. As to the documents that the 

Government asserts include a classification marking, the Government has not allowed 

Plaintiff to review these items. Obviously, without a review of the documents, no one is in a 

position to “vouch” for the location of these documents on August 8, 2022. 

Finally, when Judge Cannon issued an Amended Case Management Plan on 

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 18 of 21
19

September 29, 2022, she specifically rejected the need for the Plaintiff to make any such 

certification. Nothing has changed to warrant reconsideration of that ruling.

CONCLUSION

In moving forward with its seizure of materials from President Trump, the 

Government ignored established precedent concerning the President’s right and responsibility 

for designating documents under the PRA, and it further disregarded a former President’s 

authority to assert executive privilege with respect to certain materials. Given that President 

Trump classified these documents as personal records under the PRA, the Government’s 

approach in this matter has been wholly deficient—replacing the statutory scheme for the 

review of designation decisions with unfounded criminal measures. The PRA permitted 

President Trump to designate documents as personal records while he was President, which 

he did. In the event the Special Master disagrees with this fact, long-established past 

precedent supports President Trump’s assertion of executive privilege as to certain materials. 

Lastly, there is little basis for requiring Plaintiff to submit an affidavit concerning the seized 

materials, as it was the Government—not Plaintiff—that took custody of them and has 

maintained exclusive control over any and all documents with classified markings.

Dated:November 8, 2022 Respectfully submitted,

/s/ Lindsey Halligan 

Lindsey Halligan

Florida Bar No. 109481 

511 SE 5th Avenue

Fort Lauderdale, FL 33301

Email: lindseyhalligan@outlook.com

James M. Trusty

Ifrah Law PLLC

1717 Pennsylvania Ave. NW, Suite 650

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 19 of 21
20

Washington, D.C. 20006

Telephone: (202) 524-4176

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

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

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 20 of 21
21

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 8, 2022, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on all counsel of record via transmission of Notices of 

Electronic Filing generated by CM/ECF.

/s/ Lindsey Halligan

Lindsey Halligan

Case 9:22-cv-81294-AMC Document 171 Entered on FLSD Docket 11/08/2022 Page 21 of 21