Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

UNITED STATES OF AMERICA, Case No. 23-80101-CR-

CANNON/REINHART
Plaintiff,

vs.

DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,

Defendants.
_____________________________________

RESPONSE IN OPPOSITION TO THE GOVERNMENT’S

RENEWED MOTION FOR PROTECTIVE ORDER PURSUANT TO
SECTION 3 OF THE CLASSIFIED INFORMATION PROCEDURES ACT

Defendant, President Donald J. Trump, in the above captioned matter, hereby responds to

and opposes certain portions of the government’s proposed Protective Order Pertaining to

Classified Information pursuant to Section 3 the Classified Information Procedures Act, 18 U.S.C.

App. 3 (“CIPA” and the “Proposed CIPA Protective Order”). 1 (See ECF No. 84, United States’

Renewed Motion for Protective Order Pursuant to Section 3 of CIPA, hereinafter “Motion”).

President Trump opposes any portion of the Proposed CIPA Protective Order that prohibits counsel

from simply discussing the relevant purportedly classified material with President Trump inside

an approved secure location other than the designated SCIFs in the Southern District of Florida

where the classified discovery will be housed. President Trump respectfully requests that the

1
Nothing contained in this Opposition shall be construed as a waiver of any right of the Defendants,
including their right to challenge whether purportedly classified information is indeed classified or to move
or object to the use or admissibility of purportedly classified information during trial or pretrial proceedings.
Additionally, this Opposition and attached Affirmation have been reviewed by the assigned CISO.
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 2 of 11

Proposed CIPA Protective Order be modified to approve re-establishment of a secure facility in

which President Trump was permitted previously to discuss (and review 2) classified information

during his term as President of the United States. 3

The procedures required by the government and CIPA to allow for President Trump and

his legal team to review allegedly classified materials at issue are in addition to the substantial and

voluminous unclassified discovery that the government has provided in three productions to date. 4

The government’s third production followed the July 27, 2023, superseding indictment that added

additional charges against President Trump, Walt Nauta, and a now-third defendant, Carlos De

Oliviera. As relevant here, the charges allege various obstruction-related conduct arising out of

false claims of efforts to destroy certain video tapes. No videotapes were deleted or destroyed,

2
To be clear, President Trump is not asking for the proposed CIPA Protective Order to be modified to
permit any classified materials to be transported to or reviewed or stored in, this location.
3
Counsel can provide additional information about President Trump’s proposed secure location but
respectfully request that such information be provided in camera because of security concerns.
4
Since the government’s initial production on June 21, 2023 (which was summarized in the Opposition to
the Government’s Motion for Continuance and Proposed Revised Scheduling Order, filed on July 10 (ECF
No. 66)), the government has made two additional productions of discovery: July 17 and July 31, 2023.
The government’s second and third productions total approximately 124,700 records (in excess of nearly
289,990 pages). That means the government has now produced over 553,000 records (in excess of
1,123,400 pages) consisting of approximately 237,900 emails (including attachments) and 315,130
documents gathered from over ninety-seven (97) separate custodians.
Furthermore, the government has produced approximately 76 terabytes of compressed raw CCTV footage,
which is itself an incredible volume of material. Last week defense counsel finally finished processing the
intake of CCTV footage that the government produced on June 21—the 57 terabytes of CCTV footage
produced on June 21 totals nearly eight years of video. On July 31, the government produced an additional
19 terabytes of CCTV footage, including, according to the government’s production letter, “footage that
was produced to the government in May that was not included in the government’s first discovery
production.” Counsel recently received a hard drive with CCTV footage referenced in the government’s
July 31 letter, and we are still processing that discovery to assess the total length of additional video the
government produced.
Although the government’s July 31 discovery letter states that the “[g]overnment has now produced all
CCTV footage acquired in its investigation,” the government has not informed President Trump or the other
Defendants when it anticipates fully complying with its discovery obligations, including the production of
discovery currently in the government’s possession.

-2-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 3 of 11

and the government does not so allege; indeed, President Trump has produced to the Special

Counsel’s Office what amounts to more than eight years of CCTV footage.

So that President Trump and his legal team may discuss classified information in a

substantive manner as regularly as necessary to prepare an adequate defense, we respectfully

request that the Court approve re-establishment of a secure facility in which President Trump

previously discussed (and reviewed 5) classified information during his term as President of the

United States. This request is not based on “inconvenience” as the government falsely claims in

its Motion. (ECF No. 84 ¶ 13). This request is based on the immense practical and logistical

hurdles and costs that make it virtually impossible for President Trump to make regular trips to a

public facility to discuss classified discovery material with counsel as necessary to conduct a

defense consistent with the rights afforded by the Constitution. Both the required security protocol

surrounding President Trump’s travel and the challenges surrounding the media’s and public’s

intense focus on this prosecution pose an enormous obstacle to our ability to provide counsel to

President Trump regarding classified matters, which are, no doubt, essential to this case. Our

proposed alternative is both reasonable and appropriate, given the extraordinary and

unprecedented circumstances of this case. President Trump makes this request for the following

reasons:

1. The government and counsel for the defendants had several communications about

the Proposed CIPA Protective Order, and indeed the parties resolved many of the initial concerns

and objections to the initial drafts of the CIPA Protective Order. Notably, as the Court is aware

from the government’s initial motion for a CIPA protective order, the government initially took

5
Again, President Trump is not requesting that any classified materials be transported to or reviewed or
stored in this location.

-3-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 4 of 11

the position, incredibly, that President Trump, who is charged with illegal retention of certain

allegedly classified records, is not entitled to even review the classified materials at issue in this

case. (ECF No. 79-1 ¶¶ 8, 26.j.). This position is notwithstanding the fact that he was the 45th

President of the United States and, as such, had access to and knowledge of each and every one of

our nation’s most sensitive secrets, including, at least according to the government, all of the

purportedly classified documents and information at issue in this case. Similarly, the government

is well-aware of the fact that President Trump, while in office, had the power to declassify

information – a power he exercised regularly, as the government also knows from its investigation

in this matter. Ultimately, the government agreed to allow President Trump to personally review

the relevant classified material at a location designated by the Court. During the meet and confer

process, counsel for President Trump never raised objections to any of the provisions of the

Proposed CIPA Protective Order regarding actual review of classified material, and only asked for

the reasonable accommodation sought herein. Yet the government’s Motion both misstates our

position and requested relief and also misstates the facts as represented to us in prior

communications between the government and defense counsel as well as in representations to the

Court during the July 18, 2023, scheduling conference. The defense corrects the record here.

2. As it relates to our position regarding the contested portion of the Proposed CIPA

Protective Order, we made it clear to the government that President Trump only seeks to discuss

purported classified documents with counsel inside a previously approved facility at or near his

residence, not “in his office at Mar-a-Lago” or “an unsecure area” as cavalierly, and falsely,

suggested by the government. (ECF No. 84 ¶ 13). We similarly reminded the government of the

uniqueness of President Trump’s residence, including that it is in a highly protected location

guarded by federal agents that previously housed a secure facility approved for not only the

-4-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 5 of 11

discussion, but also the retention, of classified information. The government’s Motion suggesting

we anticipated discussing classified information in an unsecure area is wrong, and they are fully

cognizant of that fact. Similarly, the government’s statement to the court in its Motion that

President Trump’s personal residence should be compared to the residence of “any private citizen”

is misleading. This is especially true given the necessary protections afforded to our nation’s

leaders after they leave office and the uniqueness of the location of President Trump’s residence,

coupled with the fact that a secure location already existed for the relief sought herein and can be

re-established with appropriate safeguards. 6 (ECF No. 84 ¶¶ 13–14).

3. Moreover, when the government informed defense counsel of its intention to seek

a trial date more quickly than in any CIPA-related trial on record, it represented to counsel that the

vast majority of the classified documents could be reviewed by counsel prior to receiving full

classified clearance, and that only a small portion of the purported classified documents were SCI-

level communications. This is significant because, as the Court is aware, counsel is permitted to

review non-SCI-level communications after receiving interim security clearance, while SCI-level

documents can only be viewed after full security clearance is secured. Further, during the July 18,

2023, scheduling conference before Your Honor, the government represented that “Counsel will

be getting access . . . [with] their interim clearances . . . to about 80 percent of the documents.”

(July 18, 2023, Transcript at 14, attached as Exhibit 2 to this Opposition). Therefore, based on the

representations made to the Court and to defense counsel, the defense would have had access to

“80 percent” of the classified documents on or before September 7, 2023. Now, according to the

6
The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private
citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the
Mar-a-Lago property during the course of the investigation and is therefore personally aware of the
differences between President Trump’s residence and that of “any private citizen.”

-5-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 6 of 11

government’s most recent filing, and in contradiction to their previous statements, we will not have

access to “a significant portion of the classified discovery . . . , including the majority of the

charged documents,” until a much-later date. (ECF No. 84 ¶ 13). This is a new fact and one that

defense counsel (and, presumably, the Court) was not aware of prior to arguing and discussing an

appropriate schedule for CIPA-related litigation. 7 (See ECF No. 84 ¶ 13).

4. President Trump objects to the Proposed Protective Order insofar as it does not

allow him and his counsel to discuss the relevant purportedly classified material inside an

appropriate secure facility at or near his personal residence. Limiting any discussions with counsel

to the government offered SCIFs is an inappropriate, unnecessary, and unworkable restriction,

given the unique circumstances of President Trump’s access to security—namely that he resides

and works in a secure location that is protected at all times by members of the United States Secret

Service, and that the proposed alternate location previously housed an area approved for not only

the discussion, but also the storage and review, of classified information. To that end, President

Trump requests that the Court approve the renewed use of the previously approved and

appropriately secure location so that he is then able to discuss the relevant classified information

with his counsel without the need to mobilize his security detail and state and local law

enforcement every time he has a conversation regarding his defense as it relates to purportedly

classified information. 8 Re-establishing the same secure area that existed during President

7
Defense counsel does not have authorization to review SCI-level material at this time and does not know
when such authorization will be granted. Therefore, defense counsel reserves all rights to seek additional
time to review CIPA-related communications depending on the timing of our security clearances and the
actual volume of SCI-level communications.
8
Again, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit
any classified materials to be transported to, or stored in, this location.

-6-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 7 of 11

Trump’s term as President of the United States is a secure, efficient, and cost-effective way for

these conversations to take place in a fully secure environment.

5. The alternative, and the one envisioned by the government’s Proposed CIPA

Protective Order, is untenable, would make effective communication between counsel and

President Trump nearly impossible, and would make appropriate preparation for trial unattainable.

As the Court is aware, the government is expected to produce thousands of pages of discovery the

government has identified as classified. (See ECF No. 83 at 2). As it stands now, President Trump

will already have to spend considerable time in a Court approved SCIF to review these documents

with counsel. On top of that, however, there are significant amounts of work and discussion that

will be necessary between counsel and President Trump about the classified documents to better

allow counsel to, among other tasks, prepare motions, request additional discovery, and prepare

for trial. Once again, requiring all discussions between President Trump and his legal team

regarding information deemed by the government to be classified in this case to take place only in

one of the SCIFs offered by the government is unreasonably burdensome and places unnecessary

strain on President Trump, his counsel, as well as government resources and the public. This is

especially true when there is a readily available alternative that alleviates these challenges.

6. When President Trump was in office, there was a designated, secure location where

classified information was approved to be housed and discussed. We have had discussions with

officials familiar with this arrangement. (See generally Affirmation of Todd Blanche, attached as

Exhibit 1 to this Opposition). In early 2021, that location was decertified as a permitted area to

store and discuss classified information. Counsel is well aware of the challenges in re-establishing

such a secure location, and does not take this request lightly, but it is relevant and noteworthy that

this location was previously approved by the relevant government authorities within the

-7-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 8 of 11

intelligence community to allow President Trump to review and discuss classified information. 9

Further, given the amount of resources already spent on this investigation and the immense

resources that would be spent on President Trump having to travel to and from a SCIF offered by

the government every time there is a need to discuss any aspect of the allegedly classified

information, but not review the underlying documents in person, re-establishment of the previously

approved SCIF is by far the most appropriate and effective use of government resources.

7. Moreover, the previously approved location is extraordinarily secure and obviously

suitable and acceptable as it was used for years during President Trump’s term in office. The

property remains under the United States Secret Service’s constant surveillance and protection,

and it will continue to be guarded by the United States Secret Service long after the conclusion of

this matter. (See Exhibit 1). The government’s Motion dismisses this fact and compares President

Trump’s request herein to any other defendant’s request to discuss classified information in their

“private” or “personal residences” or offices. (See ECF No. 84 ¶¶ 13–14). This characterization

is misleading and misconstrues the facts of this case. Donald J. Trump served as President of the

United States for four years, and he, along with other Presidents and senior government officials,

have had access to remote facilities for the purposes of reviewing and discussing sensitive

information while in office, and at times after leaving office. There is no dispute about that. 10

8. Notwithstanding the false assumptions in the government’s Motion that counsel or

President Trump anticipate discussing purportedly classified information in an “unsecure area” or

in his “personal residences and offices [that] are not lawful locations for the discussion of classified

9
See Intelligence Community Directive 705 (May 26, 2010), available at
https://www.dni.gov/files/documents/ICD/ICD_705_SCIFs.pdf.
10
See Rajini Vaidyanathan, Barack Obama’s Top Secret Tent, BBC (Mar. 22, 2011),
https://www.bbc.com/news/world-us-canada-12810675.

-8-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 9 of 11

information,” we assure the Court that the above was never suggested by defense counsel and that

we and President Trump take seriously the rules surrounding the handling and discussion of

classified materials. (ECF No. 84 ¶¶ 13–14). The government knows full well from our request

and related conversations that defense counsel and President Trump will not discuss information

the government deems classified outside of approved facilities where such information is

authorized to be discussed. Indeed, that responsibility is the very reason motivating the relief

sought here: to allow us to comply with our obligations as attorneys with access to sensitive

information, while also allowing us to effectively prepare for CIPA litigation and the defense of

this matter at trial.

9. In addition, the government claims, without citing a single statute or case, that

granting our request would give “exceptional treatment [which] would not be consistent with the

law.” (ECF No. 84 ¶ 13). This is not true and is not in any way consistent with our ask or with

the facts of this case. This is a complex and exceptional case, and for the government to once

again take the position that it is not, is troubling. We are not asking the Court to do anything

“inconsistent” with the law. Indeed, the government has the authority to discuss the purported

classified material in other approved facilities outside of a Court designated SCIF, and we

anticipate it does so regularly. That is not inconsistent with the law so long as they are having

those discussions in a secure, approved facility. Our request is to have the same opportunity. We

are seeking the Court’s permission to discuss classified information in a secure facility that was

long approved for such use and met then, and could easily meet now, the standard required by our

nation’s intelligence community to ensure protection of information deemed classified.

10. Furthermore, the government’s motion fails to address the logistical hurdles and

incredible resources that will be required every time President Trump travels to one of the

-9-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 10 of 11

government’s contemplated SCIFs. As the Court is aware, on June 13, 2023, President Trump

appeared at the Wilkie D. Ferguson, Jr. U.S. Courthouse in Miami. Despite that hearing lasting

approximately one hour, the Courthouse was closed to the public for a significant portion of the

day and many court proceedings were postponed to a later date. This necessarily inconvenienced

the public and court staff. Moreover, local, state, and federal law enforcement were mobilized to

block surrounding public areas and ensure the safety of President Trump and courthouse personnel

against potential threats. If the government has its way, similarly complicated arrangements will

be required every time President Trump visits one of the government offered SCIFs simply to talk

with his lawyers about anything involving the CIPA-related discovery from today through the

conclusion of this prosecution.

11. President Trump’s request to discuss information deemed by the government to be

classified with his lawyers in an alternate secure facility is a more efficient use of government

resources. Efforts to safely transport and protect President Trump—all of which are required by

the Secret Service—cost the United States government and state and local municipalities hundreds

of thousands of dollars per visit, which is significantly more than the fixed amount necessary to

re-establish the secure area at which President Trump (and his lawyers) were once permitted to

discuss classified information.

-10-
Case 9:23-cr-80101-AMC Document 104 Entered on FLSD Docket 08/09/2023 Page 11 of 11

12. In conclusion, for the reasons stated herein, we respectfully submit that the Court

modify the Proposed CIPA Protective Order to approve re-establishment of a secure facility in

which President Trump and his counsel may discuss purported classified information.

Dated: August 9, 2023 Respectfully submitted,

/s/ Christopher M. Kise

Christopher M. Kise
Florida Bar No. 855545
[email protected]
CONTINENTAL PLLC
255 Alhambra Circle, Suite 640
Coral Gables, Florida 33134
(305) 677-2707

/s/ Todd Blanche

Todd Blanche
Admitted Pro Hac Vice
[email protected]
Blanche Law
99 Wall Street, Suite 4460
New York, New York 10005
(212) 716-1250

Counsel for President Donald J. Trump

-11-