Former Republican Officials, Including Top Federal Prosecutors And DOJ Officials, Support Government’s Request For A Partial Stay In Mar-a-Lago Documents Case; Amicus Brief Filed In DOJ’s Emergency Appeal
The District Court in Florida erred in its decision granting a special master in the Mar-a-Lago documents case and the Court of Appeals for the 11th Circuit should allow the Government full access to the classified documents retrieved from Mar-a-Lago for its criminal investigation, according to an amicus brief filed last night supporting the Government’s emergency motion.
Further, according to the brief, those classified documents should not be disclosed to a special master or former President Trump’s attorneys.
The amici filing the brief are former federal prosecutors and state and federal government officials who served in Republican Administrations, including former top Justice Department officials who served as Assistant, Deputy, and Acting Attorneys General, and U.S. Attorneys.
Last month, the FBI executed a court-authorized search warrant at former President Donald Trump’s country club home at Mar-a-Lago and recovered more than 11,000 documents taken from the White House, including more than 100 classified, secret, or top-secret documents.
Former President Trump requested a special master to review the documents and on September 5, federal District Judge Aileen Cannon granted the former President’s request and enjoined the Government from reviewing and using the seized materials in its ongoing criminal investigation, pending completion of the special master review.
Yesterday, the Government filed an emergency motion at the 11th Circuit Court of Appeals asking the Court to allow the Government full access to the approximately 100 classified documents for its criminal investigation and to not disclose those classified documents to a special master and Trump’s attorneys for their review.
The amici filing the brief are:
Donald B. Ayer served as Deputy Attorney General at the Justice Department (1989-1990), Principal Deputy Solicitor General of the United States (1986-1989); and U.S. Attorney for the Eastern District of California (1981-1986). He has argued 19 cases in the U.S. Supreme Court.
John B. Bellinger III served as the Legal Adviser for the State Department (2005-2009); Senior Associate Counsel to the President and Legal Adviser to the National Security Council (2001-2005); Counsel for National Security Matters in the Justice Department’s Criminal Division (1997-2001); Counsel to the Senate Select Committee on Intelligence (1996); General Counsel to the Commission on the Roles and Capabilities of the U.S. Intelligence Community (1995-1996); and Special Assistant to CIA Director William Webster (1988-1991).
Gregory A. Brower served as Assistant Director for the Office of Congressional Affairs and as Deputy General Counsel at the FBI; U.S. Attorney for the District of Nevada; and as both General Counsel and Inspector General at the U.S. Government Publishing Office. He also served five sessions in the Nevada Legislature, including as Chair of the Senate Judiciary Committee.
John J. Farmer Jr. served as an Assistant U.S. Attorney; New Jersey Attorney General; Senior Counsel to the 9/11 Commission; Dean of Rutgers Law School; and is currently Director of the Eagleton Institute of Politics. He also served on New Jersey’s Executive Commission on Ethical Standards, Advisory Committee on Judicial Conduct, and the State Commission of Investigations.
Stuart M. Gerson served as Acting Attorney General of the United States during the early Clinton Administration; as President George H.W. Bush’s Assistant Attorney General for the Civil Division of the Justice Department; as an advisor to several Presidents; and as an Assistant U.S. Attorney for the District of Columbia (1972-1975).
Peter D. Keisler served as Acting Attorney General of the United States during the George W. Bush Administration; Assistant Attorney General for the Justice Department’s Civil Division (2003-2007); Principal Deputy Associate Attorney General and Acting Associate Attorney General (2002-2003); and Assistant and Associate Counsel to President Ronald Reagan in the White House Counsel’s Office (1986-1988).
Alan Charles Raul served as Associate Counsel to the President (1986-1988); General Counsel of the Office of Management and Budget (1988-1989); General Counsel of the U.S. Department of Agriculture (1989-1993); and Vice Chairman of the White House (and, later, independent) Privacy and Civil Liberties Oversight Board (2006-2007, 2007-2008).
Olivia Troye served as Special Advisor to the Vice President for Homeland Security & Counterterrorism (2018-2020); Chief in the Department of Homeland Security (2016-2018); Senior Advisor to the Director of Intelligence & Counterintelligence for the Energy Department (2015-2016); Advisor to the Director of the National Counterterrorism Center (2007- 2010); and Advisor in the Department of Defense (2002-2007).
William F. Weld served as the U.S. Attorney for Massachusetts (1981-1986); Assistant U.S. Attorney General in charge of the Justice Department’s Criminal Division (1986-1988); and Governor of Massachusetts (1991-1997).
Christine Todd Whitman served as Governor of New Jersey (1994-2001); Administrator of the Environmental Protection Agency during the George W. Bush Administration (2001-2003); and serves on a number of nonprofit boards including the Board of Trustees’ Executive Committee of the Eisenhower Fellowships and as Chair of the American Security Project.
(The amici joined this brief as individuals. Institutional affiliation is noted for informational purposes only.)
Collectively, these individuals have decades of experience advising on matters involving the proper scope of executive power and executive privilege or prosecuting cases involving sensitive or classified materials.
The amicus brief, filed in Donald J. Trump v. United States of America in the U.S. Court of Appeals for the 11th Circuit sets forth three reasons why the Justice Department’s motion for a partial stay should be granted.
According to the amicus brief:
First, the District Court erred in holding that former President Trump could under any circumstances prevail as to the approximately 100 classified documents at issue in the Justice Department’s appeal. Those documents are the property of the U.S. Government.
Former President Trump, according to the brief, “has no right to possess the 100 or so classified records at issue here because no private citizen has a ‘possessory interest’ in the U.S. government’s classified records.”
“This proposition is not controversial,” the brief notes, “even former President Trump’s own brief opposing the Government’s request for a stay did not argue he has a possessory interest in classified documents.”
Because these documents belong to the U.S. Government and former President Trump has no right to possess them, the brief notes, “there is nothing for the special master to do” in regard to the classified documents.
Second, the appointment of a special master was clearly improper at least insofar as the special master was empowered to decide claims of executive privilege. Executive privilege, the brief notes, cannot be asserted – as former President Trump proposes – against the Executive Branch itself.
That is particularly true in this matter, the brief notes, where the Executive Branch has sought the return of its own classified records – records that belong to the U.S. Government – in connection with its ongoing core executive and national security functions.
The appointment of a special master was, the brief notes, “legal error. This error is most egregious in regard to the 100 or so classified documents.”
Executive privilege, according to the brief, “is based on the need for confidentiality in communications and deliberations with the President in the exercise of executive functions. … [I]t would be an especially bizarre perversion of the privilege to allow a former President to use it to thwart a core executive function like a criminal investigation into mishandling of classified information.”
Further, the brief once again emphasizes, any records subject to executive privilege belong to the U.S. Government, not to former President Trump.
Third, a former President is entitled to no greater protection under the law than any other citizen.
The District Court’s analysis, the brief points out, “which gave greater weight to the reputation of a former President than to the reputation of any other citizen, and greater weight to that personal reputation than to national security concerns, is fundamentally inconsistent with the basic tenets of U.S. law.”
In addition, the brief states, concern for reputational harm that the District Court noted in its decision is not a valid basis for enjoining a criminal investigation, “especially one that is inexorably intertwined with a national security damage assessment.”
There is no basis, according to the brief, for applying a different rule to former President Trump, “effectively endowing him with greater procedural rights than those afforded to other citizens.”
To do so, the brief continues, would belie the fundamental principal established in United States v. Lee (1882), that “[a]ll the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
The amicus brief is available online here and was prepared by co-counsels, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Ambassador Norman Eisen (ret.); and Democracy 21 President Fred Wertheimer.
