tfg defense team: Judge Chutkan? Our client's under control, no worries, judge, we got this!

[ancianita]

Eyes always on appeal, of course.

What's for breakfast -- ex parte.


Lauro and Singer's response to Jack Smith's motions on CIPA materials (Doc. # 101):
https://www.courtlistener.com/docket/67656604/101/united-states-v-trump/


...It would not “defeat

1
See, e.g., United States v. Stevens, 2008 WL 8743218, at *5 (D.D.C. 2008) (“[E]x parte
communications between prosecutors and the trial judge “are greatly discouraged and should only
be permitted in the rarest of circumstances.” (cleaned up)); see also United States v. Napue, 834
F.3d 1311, 1318 (7th Cir. 1987) (“[T]he district court in exercising its discretion must bear in mind
that ex parte communications are disfavored. They should be avoided whenever possible and,
even when they are appropriate, their scope should be kept to a minimum.”).
2
(See, e.g., Dkt. No. 20-3 at 7-12 ¶¶ 17-27, Judicial Watch, Inc. v. DOJ, No. 18 Civ. 2107 (TSC)
(D.D.C. Oct. 18, 2019) (publicly filed declaration explaining FBI’s application of National
Security Act in FOIA case); Dkt. No. 10-2 at 7-8, Smith v. NARA, No. 18 Civ. 2048 (TSC) (D.D.C.
Dec. 20, 2018) (publicly filed declaration explaining NARA’s Glomar response in FOIA case);
Dkt. No. 93-2, Doe v. Mattis, No. 17 Civ. 1928 (TSC) (June 1, 2018) (publicly filed redacted
declaration Defense Department official); Dkt. No. 67-2 at 10-15, ACLU, et al. v. DOJ, et al., No.
10 Civ. 436 (D.D.C. Nov. 25, 2014) (publicly filed declaration explaining CIA’s application of
National Security Act in FOIA case)).

page 3 of 7


the very purpose of the discovery rules” to grant cleared counsel access to unclassified portions of

the submission. Id. at 457. Similarly, the committee notes to Rule 16 that are quoted in Mejia

provide that prosecutors may seek a protective order authorizing the withholding of discoverable

material based on a submission that is “in whole or in part” ex parte. Id. (emphasis added).

President Trump’s position is that the “in part” portion of that language is the prudent and fair

course in this case.

Mejia itself is not to the contrary. Before addressing whether the ex parte district court

proceedings in that case constituted an abuse of discretion, the Court of Appeals “examined the

documents de novo” and found that “they are not helpful to the defense.” 448 F.3d at 457. The

Mejia court conducted that review with the benefit of a developed trial record that included the

merits arguments the defendant had presented to the court and the jury. In contrast, trial courts

have expressed concerns about resolving CIPA § 4 motions ex parte before the defendant has had

a similar opportunity to fully develop his defense. United States v. Libby, 429 F. Supp. 2d 46, 48

(D.D.C. 2006) (“n those rare situations where the government is compelled to make an ex parte

Section 4 filing containing arguments in support of immateriality, the government should fully

explain why the ex parte filing is necessary and appropriate.”); United States v. Rezaq, 899 F. Supp.

697, 707 (D.D.C. 1995). And in Mejia, only after concluding that the classified materials were not

“helpful”—i.e., not subject to Brady—did the court conclude that the ex parte proceedings were

permissible.

More recently, as we have noted, the Second Circuit handled a similar situation quite

differently, which resulted in disclosure of a classified CIPA § 4 submission to cleared defense

counsel. See United States v. Stillwell, 986 F.3d 196, 201 (2d Cir. 2021). There, as in Mejia, the

government submitted a CIPA § 4 motion to the trial court ex parte, without notice to the



3
page 4 of 7


defendants or the prosecutors responsible for the case. Whereas the Mejia panel reviewed the

filing itself and resolved the merits of the appeal, the Second Circuit ultimately remanded the case

and “ordered those [classified] documents disclosed to both parties.” United States v. Hunter, 32

F.4th 22, 25 (2d Cir. 2022). To our knowledge, no national security calamity resulted from the

decision requiring that cleared counsel be provided access to a court filing so central to the

defendants’ rights. We are seeking even less here by requesting only a redacted version of the

CIPA § 4 filing, which would be maintained under seal but permit cleared counsel to review and

respond to unclassified arguments and legal citations. The Special Counsel’s Office seemed to

invite a very similar approach with respect to one of the documents it produced in classified

discovery. (See Dkt. No. 65 at 5 & n.1 (acknowledging that the “vast majority” of a document

produced in classified discovery “is not classified” and expressing “willingness to discuss

producing the unclassified pages and portions in unclassified discovery”)). 3

While we presume that the Special Counsel’s Office has marked its CIPA § 4 motion with

a banner line indicating classification status, as well as portion marks for certain paragraphs

claiming the same, the Office is not an original classification authority under Executive Order

13526. Any classification of the Office’s submission is derivative of the classification of the

materials it discusses, and prosecutorial claims regarding sensitivity do not change that. See In re

Terrorist Attacks On Sept. 11, 2001, 523 F. Supp. 3d 478, 498 (S.D.N.Y. 2021) (“Simply saying

‘military secret,’ ‘national security’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure

will threaten our nation is insufficient to support the privilege.” (cleaned up)). That is why citations

to legal authorities that would be filed publicly in almost any other setting are not deemed classified

3
By letter dated October 4, 2023, we requested that the Special Counsel’s Office produce the
unclassified portions of the document at issue in unclassified discovery.

page 5 of 7


by virtue of their inclusion in a CIPA filing. Nor would the disclosure of this non-classified

information to the defense in an attorneys-eyes-only manner cause any cognizable harm.


Relatedly, in order to obtain relief under CIPA § 4, the Office must validly invoke what has

been referred to as the “national security privilege” and the “classified information privilege”

under United States v. Reynolds, 345 U.S. 1 (1953). See, e.g., Yunis, 867 F.2d at 623; Mejia, 448

F.3d at 456; United States v. Libby, 453 F. Supp. 2d 35, 38 n.5, 40 (D.D.C. 2006). This entails

“strict requirements,” including an “affidavit of the responsible department head for the

information pertinent to its decision concerning the privilege.” Black v. Sheraton Corp. America,

564 F.2d 531, 543 (D.C. Cir. 1977). Whereas the Special Counsel is vested with authority to

exercise the “prosecutorial functions of any United States Attorney,” 28 C.F.R. § 600.6, CIPA § 14

limits the individuals capable of invoking the privilege to the Attorney General, the Deputy

Attorney General, or “an Assistant Attorney General designated by the Attorney General for such

purpose.” Only upon a valid invocation of this privilege can the Special Counsel’s Office rely on

CIPA § 4 to seek the Court’s approval for the extraordinary step of withholding otherwise-

discoverable evidence from President Trump. We respectfully submit that the Office should not




page 6 of 7


be permitted to do so under the circumstances of this case without granting President Trump access

to the non-sensitive portions of its submission.

Dated: October 11, 2023

[gratuitous]

1. I like how the attorneys bow and scrape to their client

"President Trump" this, "President Trump" that. He's "the defendant," counselor. We only got one president at a time, and your client ain't it.

[ancianita]

2. Indeed. Across all their filings, calling their client "president" is the loyalty tell.

Stating the obvious that needs saying: as a virtue, loyalty is only as good as the service done for the client, however the client speaks and acts, and however undeserving.

What Chutkan will do on Monday by issuing a gag order, is preserve Trump's due process rights and guarantee that he'll get a fair trial with an impartial jury.