Case 9:23-cr-80101-AMC Document 283 Entered on FLSD Docket 02/06/2024 Page 1 of 10

UNITED STATES DISTRICT COURT

CASE NO. 23-80101-CR-CANNON

UNITED STATES OF AMERICA,

Plaintiff,
v.

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

Defendants.
/

ORDER GRANTING IN PART DEFENDANTS’

THIS CAUSE comes before the Court upon Defendants’ Motion for Temporary Leave to

File Redacted Motions to Compel Discovery (the “Motion”) [ECF No. 261].1 The Court has

reviewed the Motion [ECF No. 261], the Special Counsel’s Response and Proposed Redactions

[ECF Nos. 267, 268], Defendants’ Reply [ECF No. 270], the unredacted versions of the filings

and associated submissions filed under seal [ECF Nos. 261-1, 262-2], and the full record,

including the Press Coalition’s Motion to Intervene and Unseal [ECF No. 269] and the Special

Counsel’s Opposition [ECF No. 282]. Upon examination of the foregoing—and following an

independent review of the proposed redactions against the backdrop of the First Amendment’s

qualified right of access to criminal proceedings—Defendants’ Motion is GRANTED IN PART

as indicated below.

1
Defendant Trump filed the Motion; Defendants Nauta and De Oliveira join in it [ECF Nos. 261
p. 1 n.1].
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CASE NO. 23-80101-CR-CANNON

BACKGROUND

On January 16, 2024, Defendants filed multiple Motions to Compel Discovery in

consolidated form, pursuant to Rule 16 of the Federal Rules of Civil Procedure, Brady v. Maryland,

373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) [ECF No. 262].2 Defendants

attached various exhibits in support of their Motions, some of which consist of documents, or

portions of documents, produced by the Special Counsel in discovery in this case, and other

materials obtained by Defendants pursuant to the Freedom of Information Act [ECF No. 262-1

(redacted); ECF No. 262-2 pp. 69–386 (sealed)].

Consistent with the Protective Order entered on June 19, 2023 [ECF No. 27 ¶ 7],

Defendants filed their Motions to Compel in partially redacted form on the public docket

[ECF Nos. 262, 262-1] and then contemporaneously moved for leave to file substantially

unredacted versions of their Motions to Compel, with limited exceptions [ECF No. 261 pp. 2–3].

Defendants note that public and court filings are “matters of public record” as indicated in the

Local Rules, see S.D. Fla. L.R. 5.4(a), and argue that the Special Counsel has not carried its burden

to seal presumptively public records filed on the court docket, with the exception of limited

redactions consistent with privacy protections in Rule 49.1 of the Federal Rule of Criminal

Procedure and the Court’s CM/ECF Administrative Procedures [ECF No. 261 pp. 1–2].

The Special Counsel opposes unsealing the Motions to Compel to the extent that the

information therein “(a) reveals the identity of any potential Government witness; (b) reveals

personal identifying information for any potential Government witness; or (c) constitutes Jencks

2
Defendants also filed a Classified Supplement to their Motions to Compel [ECF No. 263].
Neither Defendants nor the Press Coalition seek to unseal the Classified Supplement
[ECF No. 261; ECF No. 269 p. 2 n.3].

2
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CASE NO. 23-80101-CR-CANNON

Act material for any potential Government witness” [ECF No. 267 p. 2]. The Special Counsel also

identifies “certain additional discrete sensitive information” that he argues should be redacted or

sealed, and he proposes redactions for the Motions and attached exhibits [ECF No. 267 pp. 1–3;

ECF No. 268].

Following the parties’ submissions, the Press Coalition filed a Motion to Intervene and

Unseal Defendants’ Motions to Compel Discovery and the exhibits thereto [ECF No. 269]. The

Press Coalition argues that Defendants’ Motions to Compel, in unclassified form, are

presumptively public court records as to which the Special Counsel carries a heavy burden to

restrict from public view [ECF No. 269 pp. 2–6]. The Press Coalition requests that the Court

conduct an independent review of the Special Counsel’s proposed redactions to ensure that any

redactions are rooted in a compelling governmental interest, are narrowly tailored, and are

supported by the record [ECF No. 269 p. 4]. In the alternative, the Press Coalition requests that

its brief be accepted as an amicus curiae filing “in support of neither party and in favor of

unsealing” [ECF No. 269 p. 1 n.2]. The Special Counsel opposes the Press Coalition’s effort to

intervene in this litigation over proposed redactions [ECF No. 282].

LEGAL STANDARDS

“The press and the public enjoy a qualified First Amendment right of access to criminal

trial proceedings.” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th Cir. 2005).3

Although the contours of that right as applied to court records in criminal cases remains a

3
See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 556 (1980); Globe Newspaper
Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596, 605–606 (1982); Press-Enter. Co. v. Superior
Ct. of California for Riverside Cnty., 478 U.S. 1, 11–14 (1986); see Chicago Trib. Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001).

3
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developing area of the law, several courts (with limited exceptions not relevant here4) have applied

the First Amendment right to judicial documents and records, including documents filed on a court

docket during the pretrial phase of a criminal proceeding [ECF No. 269 pp. 6–7]. See, e.g., In re

Time Inc., 182 F.3d 270, 271 (4th Cir. 1999) (applying the First Amendment right of access to

exhibits filed in support of a defendant’s pretrial motions, including a motion to compel discovery);

Associated Press v. U.S. Dist. Ct. for Cent. Dist. of California, 705 F.2d 1143, 1145 (9th Cir. 1983)

(holding that “the public and press have a first amendment right of access to pretrial documents in

general,” and further noting that “[t]here is no reason to distinguish between pretrial proceedings

and the documents filed in regard to them”).5 In this case, neither party argues that the First

Amendment does not apply to Defendants’ Motions to Compel or to the materials attached thereto

[ECF Nos. 261, 267, 268, 282].

In light of these First Amendment principles, a party seeking to seal or redact court filings,

including pretrial motions, carries a heavy burden. See Globe Newspaper Co., 457 U.S. at 607.

The party requesting closure must demonstrate that such action is “necessitated by a compelling

governmental interest and is narrowly tailored to serve that interest.” Id.; Chicago Trib. Co., 263

F.3d at 1311; Perez-Guerrero v. U.S. Atty. Gen., 717 F.3d 1224, 1235 (11th Cir. 2013) (stating a

court’s sealing determination must be “guided by the presumption of public access to judicial

4
In re Subpoena to Testify Before Grand Jury Directed to Custodian of Recs., 864 F.2d 1559,
1561 (11th Cir. 1989) (finding no First Amendment right of access to grand jury proceedings);
Bennett v. United States, No. 12-61499-CIV, 2013 WL 3821625, at *3–4 (S.D. Fla. July 23, 2013)
(noting circuit split as to whether First Amendment right applies to search warrant affidavits).
5
There is no general right of access under the First Amendment or the common law to discovery
materials not attached to a public court filing. See United States v. Nickens, 809 F. App’x 584,
591 (11th Cir. 2020) (“Discovery materials . . . do not fall within the scope of either the First
Amendment or the common law right of access.”) (citing Chicago Trib. Co., 263 F.3d at 1310,
1312, and Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007)).

4
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documents”). Further, in ordering that documents be sealed from public view, a district court must

set forth the specific legal and factual basis for such an order. See Ochoa-Vasquez, 428 F.3d at

1030 (“When sealing proceedings or documents, a court must articulate the overriding interest

along with findings specific enough that a reviewing court can determine whether the closure order

was properly entered.” (internal quotation marks omitted)).

This strong presumption of openness is reflected in this District’s Local Rules. See S.D.

Fla. L.R. 5.4(a) (establishing that, unless otherwise provided, “proceedings in the United States

District Court are public and Court filings are matters of public record”). Any party seeking to

seal judicial records thus must “set[] forth the factual and legal basis for departing from the policy

that Court filings be public.” S.D. Fla. L.R. 5.4(c)(1); see also id. (requiring the party to “specify

the proposed duration of the requested sealing”). The Court has emphasized these principles to

the parties throughout this case [See ECF Nos. 41, 228, 231].

DISCUSSION

Following an independent review of the Motion and the full record, the Court determines,

with limited exceptions as detailed below, that the Special Counsel has not set forth a sufficient

factual or legal basis warranting deviation from the strong presumption in favor of public access

to the records at issue.

Most of the Special Counsel’s proposed redactions concern sealing the identity of potential

Government witnesses and their statements as referenced in Defendants’ Motions and in certain

attachments [ECF No. 267 pp. 1–2]. In support of that request, the Special Counsel refers in

general terms to witness safety and intimidation, citing to the Jencks Act [ECF No. 267 p. 1].6

6
18 U.S.C. § 3500(a) (“In any criminal prosecution brought by the United States, no statement or
report in the possession of the United States which was made by a Government witness or
prospective Government witness (other than the defendant) shall be the subject of subpoena,
5
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Although substantiated witness safety and intimidation concerns can form a valid basis for

overriding the strong presumption in favor of public access, the Special Counsel’s sparse and

undifferentiated Response fails to provide the Court with the necessary factual basis to justify

sealing. See Ochoa-Vasquez, 428 F.3d at 1030 (reversing a district court’s sealing order for failing

to articulate “the reason for the closure or the evidence that supported the need for closure”);

United States v. Maurival, 795 F. App’x 725, 727 (11th Cir. 2019) (affirming district court’s denial

of motion to seal, where movant’s “cursory references to broad categories of protected classes of

information did not provide the court with a specific factual basis justifying the motion to seal”);

United States v. Sajous, 749 F. App’x 943, 945 (11th Cir. 2018) (affirming denial of motion to seal

where movant’s unsubstantiated safety concerns lacked any support in the record). Nor is such a

factual basis provided in the Special Counsel’s related sealed filing in support of its requests

[ECF No. 268].

The Special Counsel also alludes, again in general terms, to the concern that “public

disclosure of witness identities or their statements in advance of trial also risks infecting the

testimony of other witnesses or unnecessarily influencing the jury pool” [ECF No. 267 p. 2]. Even

accepting those rationales for sealing, the Special Counsel’s submission offers nothing in the form

of concrete factual support for those rationales or otherwise identifies any supporting evidence in

the record to justify granting the Special Counsel’s broad and unspecified requests on those bases.

Ochoa-Vasquez, 428 F.3d at 1030 (“When sealing proceedings or documents, a court must

articulate the overriding interest ‘along with findings specific enough that a reviewing court can

determine whether the closure order was properly entered.’”).

discovery, or inspection until said witness has testified on direct examination in the trial of the
case.”).
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This leaves four categories for resolution in the Special Counsel’s seal request: personal

identifying information for potential Government witnesses, such as dates of birth, email

addresses, and telephone numbers; references to signals intelligence sub-compartments; references

to an FBI code name of a separate investigation; and “uncharged conduct as to one or more

individuals” [ECF No. 267 pp. 2–3]. The Court takes these issues in turn, following a careful

review of the subject attachments in light of the Special Counsel’s exhibit-by-exhibit

seal/redaction requests.

First, as to personal identifying information (dates of birth, social security numbers, email

addresses, and phone numbers), the Court agrees with the Special Counsel and Defendants that

sealing of this information is narrowly tailored and consistent with the privacy protections rooted

in Federal Rule of Criminal Procedure 49.1 and this District’s CM/ECF Administrative Procedures

[ECF No. 267 p. 2; ECF No. 261 p. 3]. See Fed. R. Crim. P. 49.1(a)(1)–(5) (permitting redaction

of certain personal identifying information, including dates of birth, social security numbers, and

home addresses). Defendants are therefore directed to comb the materials carefully and redact

email addresses,7 phone numbers, dates of birth, social security numbers, and any home addresses.

Second, the Court determines at this stage that the Special Counsel’s national security

concerns are sufficient and specific to warrant sealing of the “signals intelligence

sub-compartments” as redacted in the Superseding Indictment [ECF No. 267 p. 2; see ECF No. 85

pp. 32–37]. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (finding a “compelling

interest in protecting both the secrecy of information important to our national security and the

7
In redacting the email addresses of potential Special Counsel witnesses, Defendants shall follow
the convention employed by the Special Counsel in the proposed redactions [ECF No. 268]. For
example, if the document contains the following reference—“John Smith
<[email protected]>”—the document should read as follows: “John Smith
<[email protected]>.”
7
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appearance of confidentiality so essential to the effective operation of our foreign intelligence

service”).

Third, with respect to the Special Counsel’s desire to shield “the FBI code name of a

separate investigation” [ECF No. 267 pp. 2–3], neither the Special Counsel’s publicly filed

Response nor the accompanying sealed filing identifies the information it seeks to redact.

Although “protection of a continuing law enforcement investigation” can constitute a compelling

governmental interest, United States v. Valenti, 987 F.2d 708, 714 (11th Cir. 1993), the Special

Counsel fails to identify the information at issue, provide any explanation about the nature of the

investigation, or explain how disclosure of the code name would prejudice or jeopardize the

integrity of the separate investigation (assuming it remains ongoing). The Special Counsel’s

request on this point is accordingly denied.

And fourth, turning to the “exhibit discuss[ing] uncharged conduct as to one or more

individuals” [ECF No. 267 p. 3], Defendants do not present any opposition to the public filing of

that information, and the Special Counsel has failed to articulate any specific factual or legal basis

for the redaction request. See Maurival, 795 F. App’x at 727 (finding district court did not abuse

its discretion in denying motion to seal where movant “provided only superficial, non-specific

references to potentially private or protected information”).8 An insufficient basis has been

provided to seal this information.

8
To the extent Defendants quote from prior sealed orders in this case, Defendants shall take care
to redact those quotations from their proposed public version of the Motions.
8
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CASE NO. 23-80101-CR-CANNON

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion [ECF No. 261] is GRANTED IN PART.

2. The Press Coalition’s Motion to Intervene [ECF No. 269] is DENIED AS MOOT.9

3. On or before February 9, 2024, Defendants shall file under seal a proposed public

version consistent with this Order for the Court’s review. Upon finding that the

redactions are consistent with this Order and no greater than necessary, the Court

shall direct the Clerk to unseal that filing.

4. The parties are reminded of the strong presumption of public access in

criminal proceedings and are directed as follows. Notwithstanding the

conventional filing procedure outlined in Local Rule 5.4(c), there shall be no filing

under seal of any unclassified material in this case unless the party seeking to make

a filing under full or partial seal first has sought and obtained permission from the

Court through a motion for leave to file under seal. The motion for leave shall be

filed publicly except in clear and supported cases of risk to personal safety or

national security. The motion for leave shall specify the particularized basis for

sealing the proposed unclassified material (including any relevant provisions of

protective orders filed in this case), the proposed duration of the seal request, and

the reasons why means other than sealing are unavailable or unsatisfactory. The

9
Because this Order achieves the objective of the Press Coalition in its Motion to Intervene, the
Court need not resolve the dispute over the Press Coalition’s legal authority to intervene to unseal
the subject records [ECF Nos. 269, 282].

9
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party seeking authorization to seal material shall not file or otherwise attach

the subject material until the Court has ruled on the motion for leave. Any

impending deadline connected to the seal request shall be denoted in the motion for

leave. And any motion for leave to file unclassified records under seal as part of a

court filing shall be made following conferral and sufficiently in advance of the

related filing deadline to permit adequate Court consideration.

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 6th day of February

2024.

_________________________________
AILEEN M. CANNON
UNITED STATES DISTRICT JUDGE

cc: counsel of record

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