Professional Documents
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Usa V Trump Mal Scif Request
Usa V Trump Mal Scif Request
vs.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
_____________________________________
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
which President Trump was permitted previously to discuss (and review 2) classified information
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.
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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
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.
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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
guarded by federal agents that previously housed a secure facility approved for not only the
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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
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.”
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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
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
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.
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Trump’s term as President of the United States is a secure, efficient, and cost-effective way for
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
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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.
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
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.
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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
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
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
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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
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
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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.
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