United States District Court for the Southern District of Florida

“ Appointment of a special master to review materials potentially subject to claims of executive privilege would be particularly inappropriate because binding Supreme Court precedent forecloses Plaintiff’s argument that review of these materials by personnel within the Executive Branch raises any such privilege concerns. ”

“ The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to "conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps." These reviews will be conducted by current government personnel who, like the archival officials in Nixon v. GSA, are "sensitive to executive concerns." ”

“ Although the former President may have a property interest in his personal effects, he cannot demonstrate callous disregard of the Fourth Amendment considering the patient exhaustion of less-intrusive methods to obtain return of documents with classification markings from the Premises and FBI Special Agents’ scrupulous adherence to the terms of the search warrant, which permitted them to seize the entire “containers/boxes” in which the documents with classification markings were stored, as well as other containers/boxes stored collectively. ”

“ The special master’s duties should be limited to assessing Plaintiff’s claims of attorney-client privilege over the set of potentially privileged documents identified by the Privilege Review Team. Fed. R. Civ. P. 53 (b) (2) (A) . For the reasons articulated above, there is no precedent or basis for appointing a special master to review documents for executive privilege and barring current Executive Branch law enforcement officials or officers from continuing to access that material, including to assess national security risks. ”

“ GSA, the Supreme Court rejected former President Nixon’s assertion that a statute requiring the General Services Administration [13] to take custody of and review recordings and documents created during his presidency violated either the separation of powers or executive privilege. 433 U.S. at 433–36. Addressing the separation of powers, the Court emphasized that the Administrator of the GSA “is himself an official of the Executive Branch,” and that the GSA’s “career archivists” are likewise “Executive Branch employees.” ”

“ As described above, the government resorted to a search warrant only after the former President failed to return missing records as requested by NARA and then as required by a grand jury subpoena. See supra at 4–5, 8–10. The government’s seizure of these records through use of a search warrant is a direct result of Plaintiff’s own conduct, and this “inequitable conduct” “make [s] equitable relief inappropriate.” ”

“ But even if the former President had actually asserted executive privilege with regard to any of the seized documents (which he has not) , and even if he had statutory authority to do so (which is not established) , such an assertion would fail here because this case involves the recovery and review of executive records by executive officials performing core executive functions. The Supreme Court has made clear that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Nixon v. ”

“ The Presidential Records Act makes clear that “ [t] he United States” has “complete ownership, possession, and control” of them. 44 U.S.C. § 2202. Furthermore, this Court lacks jurisdiction to adjudicate Plaintiff’s Fourth Amendment challenges to the validity of the search warrant and his arguments for returning or suppressing the materials seized. For those reasons and others, Plaintiff has shown no basis for the Court to grant injunctive relief. Plaintiff is not likely to succeed on the merits; he will suffer no injury absent an injunction—let alone an irreparable injury ”

“ Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to "receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends." ”

“ Plaintiff’s assertion that because the documents “were created during his term as President,” they are “‘presumptively privileged’ until proven otherwise,” D.E. 1 at 15 (quoting United States v. Nixon, 418 U.S. 683, 713 (1974) ) , is therefore incorrect. That presumption arises only “ [u] pon receiving a claim of privilege from the Chief Executive.” United States v. Nixon, 418 U.S. at 713. Additionally, a former President can invoke executive privilege only with respect to communications made “‘in performance of [the President’s] responsibilities.’” Nixon v. ”

“ As to the third requisite for injunctive relief, “the threatened injury to the movant” is far outweighed by the “damage the proposed injunction may cause” to the government. Vital Pharmaceuticals, 23 F.4th at 1291 (internal quotations omitted) . DOJ is in the midst of an ongoing criminal investigation pertaining to potential violations of the Espionage Act, 18 U.S.C. § 793 (e) , as well as obstruction of justice, 18 U.S.C. § 1519, and unlawful concealment or removal of government records, 18 U.S.C. § 2071. ”

“ Although this filing was docketed on April 13, 2018, the text of the motion is dated April 12, 2018, id. at 28, and a declaration from Cohen’s attorney asserts that counsel for Cohen notified the U.S. Attorney’s Office on April 12, 2018 that it intended to file the application, see Harrison Decl., Cohen, No. 1:18-MJ-3161, D.E. 7 at 7 (S.D.N.Y. Apr. 13, 2018) . ↑ See Letter Motion, Cohen v. United States, No. 1:18-MJ-3161, D.E. 8 (S.D.N.Y. Apr. 15, 2018) . ↑ Plaintiff’s motion does not purport to include any assertion of executive privilege by the former President ”