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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDAWEST PALM BEACH DIVISIONCASE NO. 23-80101-CR-CANNONUNITED STATES OF AMERICA

Plaintiff,v.

DONALD J. TRUMP,WALTINE NAUTA, andCARLOS DE OLIVEIRA,

Defendants.

________________________________/UNITED STATES’ REPLY IN SUPPORT OF RENEWED MOTION FORPROTECTIVE ORDER PURSUANT TO SECTION 3 OF THE CLASSIFIEDINFORMATION PROCEDURES ACT

The United States of America files this reply in support of its Renewed Motion forProtective Order Pursuant to Section 3 of the Classified Information Procedures Act (“CIPA”)(ECF No. 84, “Mot.”).The Government’s proposed protective order, ECF No. 84-1, reflects standard proceduresfor handling classified information in criminal cases and is consistent with the law. DefendantTrump’s opposition (ECF No. 104, “Trump Resp.”), on the other hand, seeks special treatmentthat no other criminal defendant would receive and that is unsupported by law or precedent. Italso rests on a misrepresentation of the proposed protective order’s requirements. The proposed protective order requires that any discussion of classified information between Trump and hisattorneys take place in a sensitive compartmented information facility (“SCIF”); it does

not

require, as Trump maintains, that all discussions take place in the same SCIF where classified

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2discovery will be housed. As such, there is no need to modify the proposed protective order onthat basis—much less to include in the order approval to “re-establish[]” a secure area at anunidentified location used during Trump’s presidency, which is likely a reference to one of hishomes. Creating a secure location in Trump’s residence—which is also a social club—so he candiscuss classified information would be an unnecessary and unjustified accommodation thatdeviates from the normal course of cases involving classified discovery.The opposition filed by Defendant Waltine Nauta (ECF No. 105, “Nauta Resp.”) seeks Nauta’s unfettered personal access to classified discovery, even though he is not charged with anyoffense under 18 U.S.C. § 793, no longer has a security clearance, and has not established that hehas a need to know the sensitive information in the classified documents. The proposed protective order permits Nauta’s cleared counsel to view the classified discovery and to obtain permission, on a case-by-case basis, to share that classified discovery with his client, should sucha need arise. That procedure more than satisfies the constitutional concerns that Nauta invokes,while also complying with CIPA.

Defendant Trump’s Objections

According to his opposition, Trump “opposes any portion of the Proposed CIPA ProtectiveOrder that prohibits counsel from simply discussing the relevant purportedly classified materialwith President Trump inside an approved secure location other than the designated SCIFs in theSouthern District of Florida where the classified discovery will be housed.” Trump Resp. at 1.The Government’s proposed protective order, however, contains no such requirement. Rather,the Government’s proposed protective order (ECF No. 84-1) contains the following provisions:



Paragraph 3.f defines “SCIF” as “a sensitive compartmented information facilityapproved by a designated CISO for the storage, handling, and control of classifiedinformation.”

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

Paragraph 8 requires that “[a]ny classified information the defense discusses with theDefendants in any way shall be handled in accordance with this Order, including suchrequirements as confining all discussions, documents, and materials to an accreditedSCIF.”



Paragraph 26.f requires the defense to “discuss classified information only within theSCIF or in an area authorized by the CISO.”

None of these provisions requires that the only SCIF in which defense counsel may discussclassified information with Trump is the SCIF where classified discovery will be housed. In theGovernment’s view, the particular SCIF(s) that can be used for such discussions should bedetermined by the CISO in consultation with the defense, and if necessary, the Court, just as inany other criminal case involving classified information.Trump asks the Court to insert language in the protective order “to approve re-establishment of a secure facility” at an unidentified location where Trump was permitted to reviewclassified information during his presidency. Trump Resp. at 2. In making this request for thecreation of a secure location for his personal use, Trump continues to seek special treatment thatno other criminal defendant would receive. In essence, he is asking to be the only defendant everin a case involving classified information (at least to the Government’s knowledge) who would beable to discuss classified information in a private residence. And of course, The Mar-a-Lago Clubis even less suited than most residences to host a secure location, because it is a social club. Inaddition to Trump’s residence and office, The Mar-a-Lago Club contains more than 25 guestrooms, two ballrooms, a spa, a gift store, exercise facilities, office space, and an outdoor pool and patio.

See

ECF No. 85 at 5. As of January 2021, The Mar-a-Lago Club had hundreds ofmembers and was staffed by more than 150 full-time, part-time, and temporary employees.

Id.

As noted in the Government’s motion, the CISO may authorize the defense to discuss classifiedinformation at an

in camera

hearing, for example.

See

Mot. at 7.

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4Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 50 social events,including weddings, movie premieres, and fundraisers that together drew tens of thousands ofguests.

Id.

Trump also provides no specifics in either his response or the attached declarationabout what steps (including cost or time) would be required to create a secure space at his proposedlocation. The Government reiterates that as long as the classified information at issue—whichincludes a significant amount of SCI—is discussed in an accredited SCIF in compliance withIntelligence Community Directive (“ICD”) 705 and applicable laws and regulations, theGovernment defers to the CISO to aid the defense in determining the appropriate locations inwhich discussion of classified information may occur, including consultation with the Court ifnecessary. There is no reason to use the protective order as a vehicle to address these fact-intensive logistical questions.Finally, the Government notes that Trump has mischaracterized the scope of classifiedinformation counsel is currently authorized to view.

See

Trump Resp. at 5 (“SCI-leveldocuments can only be viewed after full security clearance is secured.”). As the Governmentindicated in previous filings, counsel with interim clearances may view certain SCIcompartments—SI, SI-G, and TK.

See, e.g.,

ECF No. 84-1 at 7. The Government hasconfirmed with the CISO that Trump’s counsel are currently authorized to view such documents.

This is not the only misstatement in Trump’s filing. For example, the Government never tookthe position that Trump was not entitled to review the classified information in the case.

See

Trump Resp. at 4. The Government had previously proposed a standard protective order provision permitting the Government to designate whether classified discovery could be providedto the defendants personally.

See

ECF No. 79-1. The Government represented to counsel duringa meet-and-confer session that it was the Government’s intention to designate all classifieddiscovery of which it presently was aware as releasable to Trump, consistent with itsrepresentations to the Court at the July 18 hearing.

See

Trump Resp. Ex. 2 at 12. Counsel forTrump was unsatisfied with this representation, and given the Government’s intention, theGovernment modified the proposed protective order to avoid unnecessary litigation.

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5Immediately upon the entry of a Section 3 protective order, defense counsel may access, as theGovernment represented at the July 18 hearing, “about 80 percent of the documents that went fromthe White House to Mar-a-Lago,” Trump Resp. Ex. 2 at 15, as well as other classified records thatcomprise the Government’s first production of classified discovery.

II.

Defendant Nauta’s Objections

Nauta objects to the protective order because it does not grant him unfettered personalaccess to the classified discovery. He ignores the relevant language in the Government’s proposed protective order and proposes no alternative language for the Court. The relevant portions of the Government’s protective order do not impose a wholesale prohibition on Nautaseeing any information provided to his counsel in classified discovery, as Nauta’s oppositionimplies. Rather, the relevant proposed provisions are as follows:



Paragraph 8 prohibits the defense from disclosing classified information to Nauta“unless that same information has been previously disclosed to the defense byDefendant Nauta or the information has been approved for disclosure to Defendant Nauta pursuant to the procedure set forth in paragraph 26.j.”



Paragraph 26.j prohibits the defense from disclosing classified information toDefendant Nauta, other than materials designated as releasable to him personally,“unless either (1) the defense seeks and obtains permission from the government, or (2)the Court orders the government to permit the information to be shared with Defendant Nauta, and the government informs the defense that it does not intend to exercise anyfurther rights under CIPA.”These provisions, which Nauta does not address, fully satisfy his constitutional concerns,which are themselves largely based on the speculative possibility that the content of the classifieddiscovery could affect his defense, even though he is not charged in any count under Section 793. Nauta undoubtedly has the right to be meaningfully present at his trial and to assist in his defense.

See Holmes v. South Carolina

, 547 U.S. 319, 324 (2006);

Geders v. United States

, 425 U.S. 80,89-91 (1976). But the cases Nauta cites in support of this uncontroversial proposition have

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6nothing to do with access to discovery, let alone applicability to the classified information protective order issue before the Court.

Holmes

presented “the question whether a criminaldefendant’s federal constitutional rights are violated by an evidence rule under which the defendantmay not introduce proof of third-party guilt” under certain circumstances, 547 U.S. at 321, and

Geders

considered whether a court order directing the defendant not to consult his attorney duringan overnight trial recess violated his Sixth Amendment rights, 425 U.S. at 81. Likewise, as Nautaconcedes,

United States v. Nunez

, 1 F. 4th 976, 991-92 (11th Cir. 2021), addressed evidentiaryrulings at trial—not pretrial discovery rulings—and found no infringement of defendants’ rights. Nauta claims that unless he is granted blanket access to the classified evidence, he “cannotreasonably determine whether to pursue a severance” and “cannot understand how evidence hemay offer in his own behalf will be viewed by the jury absent an understanding of the case to be presented in its entirety by the government.” Nauta Resp. at 4-5. Nauta also speculates that ifa classified “document reveals some form of bias,” he would need to see it to participatemeaningfully in jury selection.

Id.

at 5. But those arguments conflate counsel’s access todiscovery with Nauta’s personal access. Nauta’s cleared counsel will be able to review allclassified discovery presently identified. As discussed below, courts presume that counsel arequalified to make assessments such as these, and if after viewing the classified discovery, counsel believe there is a need to discuss with Nauta specific classified information not already designatedfor release to him, the Government’s proposed protective order provides a mechanism to do so ona case-by-case basis. Nauta provides two other reasons why he must personally view several thousands of pagesof classified documents, neither of which is persuasive. First, Nauta asserts that he needs todetermine whether he has ever seen them before. Nauta Resp. at 5-6. The classified discovery

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7in this case goes well beyond the charged documents

and includes documents so sensitive that Nauta would not have been permitted to view them even when he possessed a security clearance.The Government intends to disclose to Nauta the classified discovery that it has reason to believe Nauta has previously seen—the unredacted version of the picture included in paragraph 32 of thesuperseding indictment and the document charged in Count 8. The mere possibility that Nauta previously may have seen another classified document does not establish a need for him to haveaccess to several thousand pages of highly classified discovery containing some of the UnitedStates’ most sensitive secrets. Furthermore, unlike Trump, Nauta is not charged with theunlawful retention of national defense information

Nauta is charged with obstruction and falsestatements offenses related to the investigation of Trump’s unlawful retention of classifieddocuments, the resolution of which does not turn on the classification of the documents he isalleged to have helped Trump conceal—establishing that information is classified or nationaldefense information is not an element of any of the crimes with which he is charged. His secondargument, that he must personally review the charged documents because he may have informationabout whether the documents would have “been deemed classified,”

see

Nauta Resp. at 6, similarlyfails—there is no reason to believe that Nauta would know any such information, and even if hedid, that would not bear on any of the charges against him.Permitting Nauta automatic access to all classified discovery would be inconsistent withlaws governing access to classified information and applicable case law. Classified informationmay lawfully be provided only to individuals who have a “need to know” the information.

See

For example, the classified discovery will include other classified documents that were broughtfrom the White House to Mar-a-Lago, classified emails about highly classified briefings given tothen-President Trump, and classified witness statements about then-President Trump’s knowledgeabout classified information.

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8Mot. at 3 (citing Exec. Order 13526 §§ 4.1(a), 6.1(dd);

United States v. Daoud

, 755 F.3d 479, 484(7th Cir. 2014)). Nauta would turn this principle on its head—instead of articulating a need toknow as a condition precedent for blanket access to several thousand pages of classifiedinformation, he asks this Court to presume a need to know simply by virtue of his being adefendant—a defendant who is not even charged with retaining national defense information.Case law also forecloses Nauta’s arguments that he must have personal access to allclassified discovery. He cites

United States v. Aref

for the proposition that the Government maynot deprive a defendant of material or helpful evidence (and in that case, the court held theGovernment had not done so). 533 F.3d 72, 79-81 (2d Cir. 2008). But

Aref

did not address thedefendant’s personal access to classified discovery, and in fact, just a few months after deciding

Aref

, the Second Circuit in

In re Terrorist Bombings

referenced its holding in

Aref

and stated thatit was “now hold[ing] that CIPA authorizes district courts to limit access to classified informationto persons with a security clearance as long as the application of this requirement does not deprivethe defense of evidence that would be ‘useful to counter the government’s case or to bolster adefense.’” 552 F.3d 93, 122 (2d Cir. 2008) (quoting

Aref

, 533 F.3d at 80). If, in reviewing theclassified discovery, counsel encounter specific information that would meet this standard, counselcan seek authorization to share that information with Nauta on a case-by-case basis, as the protective order allows.As discussed in the Government’s motion, courts have consistently rejected due processand Sixth Amendment challenges like Nauta’s.

See

Mot. 4-5. Nauta attempts to distinguish theGovernment’s cases because he is not “accused of violent, terrorist crimes or the transmission ofnational defense information to foreign and enemy nations . . . .” Nauta Resp. at 6. The casescited in the Government’s motion, however, stand for the generally applicable proposition that

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9counsel is presumed to be able to make assessments based on classified discovery without the inputof defendants in many situations, and when that occurs, no due process or Sixth Amendmentviolation results.

See In re Terrorist Bombings

, 552 F.3d at 123-28 (rejecting defendant’sargument that his Fifth and Sixth Amendment rights were violated by a “mandatory clearancerequirement” that “placed off-limits to him ‘important evidence which could not adequately beinterpreted by counsel alone’”);

United States v. Moussaoui

, 591 F.3d 263, 289-90 (4th Cir. 2010)(rejecting an argument similar to the one defendant makes here that under cases such as

Geders

supra

, defendant had been deprived of his Sixth Amendment right to discuss evidence withcounsel);

United States v. Hausa

, 232 F. Supp. 3d 257, 264 (E.D.N.Y 2017) (rejecting defendant’sargument that his due process rights were violated because he was personally denied access toevidence that only he could explain to counsel);

United States v. Rezaq

, 156 F.R.D. 514, 525 &n.20 (D.D.C. 1994) (holding that limiting to counsel disclosure of classified information did notviolate defendant’s constitutional rights and citing several cases in which courts rejected due process or Sixth Amendment challenges to limitations on sharing information with defendants personally);