TRUMP

v.

UNITED STATES

THIS CAUSE comes before the Court upon the Government’s Motion for Partial Stay Pending Appeal (the “Motion”) [ECF No. 69], filed on September 8, 2022. The Court has reviewed the Motion, the Response in Opposition [ECF No. 84], the Reply [ECF No. 88], and the full record. For the reasons discussed below, the Government’s Motion [ECF No. 69] is DENIED. Further, by separate order, and by agreement of the parties as a matter of selection [ECF Nos. 83, 86], the Honorable Raymond J. Dearie, Senior United States District Judge for the Eastern District of New York, is hereby appointed to serve as Special Master in this case. As further described in that order, the Special Master is directed to prioritize review of the documents at issue in the Motion and to issue interim reports and recommendations as appropriate.

RELEVANT BACKGROUND

Plaintiff Donald J. Trump initiated this action on August 22, 2022, seeking various forms of relief in connection with the search warrant executed on his residence on August 8, 2022 [ECF No. 1]. The Court held a hearing on Plaintiff’s requests on September¹, 2022 [ECF No. 62]. Thereafter, pursuant to its equitable jurisdiction and inherent supervisory authority, and in light of the extraordinary circumstances presented, the Court granted Plaintiff’s request for the appointment of a special master and temporarily enjoined the Government from further review and use of the seized materials for criminal investigative purposes only (the “September⁵ Order”) [ECF No. 64]. The September⁵ Order allows the Government to “continue to review and use the materials seized for purposes of intelligence classification and national security assessments” (the “Security Assessments”) [ECF No. 64 p. 24].

On September 8, 2022, the Government filed a notice of appeal [ECF No. 68] followed by the instant Motion [ECF No. 69].1 The Motion requests a stay of the September⁵ Order to the extent it “(1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review” [ECF No. 69 p. 1]. The Motion is accompanied by the Declaration of Alan E. Kohler, Jr., Assistant Director of the Counterintelligence Division of the Federal Bureau of Investigation (the “Kohler Declaration”) [ECF No. 69-1]. The Kohler Declaration states that the Government’s Security Assessments are “inextricably linked” to the Government’s criminal investigation, and that it would be “exceedingly difficult” to bifurcate the personnel involved [ECF No. 69-1 pp. 3–4]. On September 12, 2022, Plaintiff filed a response in opposition to the Motion [ECF No. 84], and on September 13, 2022, the Government filed a reply [ECF No. 88]. The Government advises in the Motion that it will seek relief from the United States Court of Appeals for the Eleventh Circuit “[i]f the Court does not grant a stay by Thursday, September 15” [ECF No. 69 p. 1]. Appreciative of the urgency of this matter, the Court hereby issues this Order on an expedited basis.

LEGAL STANDARD

In considering a motion to stay pending appeal, district courts must consider “(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies.” Democratic Exec. Comm. of Fla. v. Lee, 915 F. 3d 1312, 1317 (11th Cir. 2019) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). “The first two factors of [this] standard are the most critical,” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial discretion to stay an injunction].” Nken, 556 U.S. at 433–34.

DISCUSSION

The Motion primarily seeks a stay of the September⁵ Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” [ECF No. 69 p. 2 n.1]. In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion. To further expand the point, and as more fully explained in the September⁵ Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022

[ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15].

Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)].2 In many respects, the Government’s position thus presupposes the content, designation, and associated interests in materials under its control—yet, as the parties’ competing filings reveal, there are disputes as to the proper designation of the seized materials, the legal implications

Indeed, if the Court were willing to accept the Government’s representations that select portions of the seized materials are—without exception—government property not subject to any privileges, and did not think a special master would serve a meaningful purpose, the Court would have denied Plaintiff’s special master request [see ECF No. 48 p. 3 (arguing that the “appointment of a special master is unnecessary” because the Government had already reviewed the materials and identified personal items and potentially privileged materials)].

Therefore, upon consideration of the full range of seized materials as described in the Government’s submissions, and for the reasons explained in the September⁵ Order and supplemented in part below, the Court does not find the requested partial stay to be warranted under the circumstances. The Court offers the following limited analysis on three additional areas, mindful of the Government’s request for an expedited ruling.

I. The September 5 Order

First, accounting for the concerns raised in the Government’s submissions [ECF No. 69 p. 17; ECF No. 88 p. 8], the Court finds that further elaboration on the September⁵ Order is warranted. The September⁵ Order temporarily enjoins the Government—as a component of the special master process—only from further use of the content of the seized materials for criminal investigative purposes pending resolution of the Special Master’s recommendations. This includes, for example, presenting the seized materials to a grand jury and using the content of the documents to conduct witness interviews as part of a criminal investigation. The September⁵

Order does not restrict the Government from conducting investigations or bringing charges based on anything other than the actual content of the seized materials; from questioning witnesses and obtaining other information about the movement and storage of seized materials, including documents marked as classified, without discussion of their contents [ECF No. 69 p. 17]; from briefing “Congressional leaders with intelligence oversight responsibilities” on the seized materials [ECF No. 69 p. 17 n.5]; from reviewing the seized materials to conduct the Security Assessments; or from involving the FBI in the foregoing actions.³ Moreover, as indicated in the September⁵ Order, the temporary restraint does not prevent the Government from continuing “to review and use the materials seized for purposes of intelligence classification and national security assessments” [ECF No. 64 p. 24].

Hence, as Plaintiff acknowledges, to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts concerning the content of the seized materials, the September⁵ Order does not enjoin the Government from proceeding with its Security Assessments [ECF No. 84 p. 16; ECF No. 39 pp. 2–3]. Again, the September⁵ Order imposes a temporary restraint on certain review and use of the seized materials, in natural conjunction with the special master process, only for the period of

II. Irreparable Injury

The Court is not persuaded that the Government will suffer an irreparable injury without the requested stay. With respect to the temporary enjoinment on criminal investigative use, the Government’s main argument is that such use is “inextricably intertwined” with its Security Assessments and therefore the enjoinment at issue necessarily poses a risk to national security interests [ECF No. 69 pp. 3, 12–17]. Mindful of the traditional “reluctan[ce] to intrude upon the

Cf. United States v. Ritchey, No. 21-CR-6, 2022 WL 3023551, at *9 (S.D. Miss. June³, 2022) (enjoining government’s prosecution team from further review and use of seized materials until court approved a new filter review process to verify the filter review team’s initial screening process); In re Search Warrant dated November⁵, 2021, No. 21-MC-00813-AT, ECF No. 5 (S.D.N.Y. Nov. 12, 2021) (indicating that government voluntarily paused its “extraction and review” of seized contents pending consideration and appointment of special master); In the Matter of Search Warrants Executed on April 9, 2018, No. 18-MJ-03161-KMW, ECF No. 16 (S.D.N.Y. Apr. 9, 2018) (same); In the Matter of Search Warrants Executed on April 28, 2021, No. 21-00425- MC-JPO, ECF No. 1 p. 2 (S.D.N.Y. May⁴, 2021) (noting that government voluntarily did not begin review of seized materials pending consideration and appointment of special master). authority of the Executive in military and national security affairs,” Department of Navy v. Egan, 484 U.S. 518, 530 (1988), the Court nonetheless cannot abdicate its control over questions of privilege and does not find the Government’s argument sufficiently convincing as presented.

First, there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure [see ECF No. 64 pp. 9–11 n.11].

Second, although it might be easier, in the immediate future, for the Government’s criminal investigative work to proceed in tandem with the Security Assessments, the Government’s submissions on the subject do not establish that pausing the criminal investigative review pending completion of the Special Master’s work actually will impede the intelligence community’s ability to assess “the potential risk to national security that would result from disclosure of the seized materials” [ECF No. 39 pp. 2–3]. The Kohler Declaration, for example, states that it would be “exceedingly difficult” to bifurcate the personnel involved in the described processes, and then it proceeds to posit hypothetical conflicts that could arise if the Security Assessments require criminal investigative efforts [ECF No. 69-1 ¶ 9; see also ECF No. 88 p. 9 (explaining that continued enjoinment of use and review of the seized materials for criminal investigative purposes would cause the intelligence community to “(at best) be limited in its ability to address and fully mitigate any national security risks presented”)]. The Government’s submissions, read collectively, do not firmly maintain that the described processes are inextricably intertwined, and instead rely heavily on hypothetical scenarios and generalized explanations that do not establish irreparable injury.

Third, as noted above, to the extent that the Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials, the Court makes clear that the September⁵ Order does not enjoin the Government from taking actions necessary for the Security Assessments.⁵ And finally, in light of the Government’s stated concerns, the Court will direct the Special Master to prioritize review of the approximately 100 documents marked as classified (and papers physically attached thereto), and thereafter consider prompt adjustments to the Court’s Orders as necessary. The Government also presents the argument, in passing, that making the full scope of the seized materials available to the Special Master would itself create irreparable harm [ECF No. 69 p. 18]. Insofar as the Government argues that disclosure to a Special Master of documents marked as classified necessarily creates an irreparable injury because the special master process in this case is unnecessary, the Court disagrees for the reasons previously stated. Separately, to the extent the Government appears to suggest that it would suffer independent irreparable harm from review of the documents by the Court’s designee with appropriate clearances and controlled access, that argument is meritless.

III. Relevant Principles

Lastly, the Court agrees with the Government that “the public is best served by evenhanded adherence to established principles of civil and criminal procedure,” regardless of the personal identity of the parties involved [ECF No. 88 p. 10]. It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice. Based on the nature of this action, the principles of equity require the Court to consider the specific

CASE NO. 22-81294-CIV-CANNON context at issue, and that consideration is inherently impacted by the position formerly held by Plaintiff. The Court thus continues to endeavor to serve the public interest, the principles of civil and criminal procedure, and the principles of equity. And the Court remains firmly of the view that appointment of a special master to conduct a review of the seized materials, accompanied by a temporary injunction to avoid unwarranted use and disclosure of potentially privileged and/or personal materials, is fully consonant with the foregoing principles and with the need to ensure at least the appearance of fairness and integrity under unprecedented circumstances.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED that the Motion for Partial Stay Pending Appeal [ECF No. 69] is DENIED. DONE AND ORDERED in Chambers at Fort Pierce, Florida this 15th day of September 2022.

UNITED STATES DISTRICT JUDGE ce: counsel of record