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FILED BY
71
/'/YJ/V D.C.
/
AUG 2 5 2022
UNITED ST ATES DISTRICT COUR
ANGELA E. NOBLE
SOUTHERN DISTRICT OF FLORID CLERK U.S. 01ST. CT
S.D. OF FLA. -W.P.B.

CASE NO. 22-MJ-8332-BER

IN RE SEALED SEARCH WARRANT

UNDERSEAL
_ _ _ _ _ _ _ _ _ _ _ _ _!

UNITED STATES' SEALED, EX PARTEMEMORANDVM OF LAW REGARDING

PROPOSED REDACTIONS

Pursuant to this Court's August 18 and August 22, 2022 orders, the United States

respectfully submits this sealed, ex parte memorandum of law setting forth the justifications

for its proposed redactions to the affidavit submitted to the Court on August 5, 2022, in

· support of the government's application for a search warrant at a property of former President

Donald J. Trump. See Docket Entries ("D.E. ") 1, 74, 80. For the reasons explained below,

the materials the government marked for redaction in the attached document must remain

sealed to protect the safety and privacy of a significant number of civilian witnesses, in

. addition to law enforcement personnel, as well as to protect the integrity of the ongoing

investigation and to avoid disclosure of grand jury material in violation of the Federal Rules

of Criminal Procedure.

Procedural Background

On August 8, 2022, the Department of Justice executed a search warrant, issued by

this Court upon the requisite finding of probable cause, at the premises located at I 100 S.

Ocean Blvd., Palm Beach, Florida 33480, a property of former President Trump. Given the

circumstances presented in this matter and the public interest in transparency, and in the wake
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The Court found that disclosure of the Affidavit would likely result in witnesses being

"quickly and broadly identified over social media and other communication channels, which

could lead to them being harassed and intimidated.'' Id. at 9. The Court gave "great

weight" to "the significant likelihood that unsealing the Affidavit would harm legitimate

privacy interests," with disclosures potentially serving to "impede the ongoing investigation

. through obstruction of justice and witness intimidation or retaliation." Id. at 9-10. And the

Court found that the Affidavit contains "critically important and detailed investigative facts:

highly sensitive information about witnesses . . . ; specific investigative techniques; and

information required to be kept under seal pursuant to Federal Rule of Criminal Procedure

6(e)," the disclosure of which "would detrimentally affect this investigation and future

investigations." Id. at I 0. However, noting that the warrant involves "matters of significant

public concern," id., the Court concluded that "the present record'' does not "justif1y] keeping

the entire Affidavit under seal," id. at 13 (emphasis added).

Argument

The Redacted Materials Must Remain Under Seal

As the Court has found, "(p]rotecting the integrity and secrecy of an ongoing criminal

investigation is a well-recognized compelling governmental interest." D .E. 80 at 6 (citing,

interalia, United States v. Valenti, 986 F.2d 708, 714 (11th Cir. 1993)). Indeed, "[a]t the pre-

. indictment stage, the Government's need to conceal the scope and direction of its

investigation, as well as its investigative sources and methods, is at its zenith." D.E. 80 at

7-8 (citing Blalock v. United States, 844 F.2d 1546, 1550 n.5 (I I th Cir. I 988)). Counsel for the

Intervenors have also acknowledged that certain portions of the affidavit must likely remain

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of the former President's public confirmation of the search and his representatives' public

characterizations of the materials sought, the government moved to unseal the search

wanant, its attachments, and the Property Receipt summarizing materials seized, and this

Court granted the government's motion. D.E. 18, 41.

A number of news media organizations and other entities (the "Intervenors") have

filed motions to unseal these and other materials associated with the search warrant, including

the affidavit. The government submitted its omnibus response to those motions on August

· 15, 2022. D.E. 59. The Court conducted a hearing on August 18, 2022, at the conclusion

of which the Court directed the government to file under seal its proposed redactions to the

affidavit and a legal memorandum setting forth the justifications for the proposed redactions. 1

D.E. 74.

In a subsequent order, the Court noted that the government "has met its burden of

showing good cause/a compelling interest that overrides any public interest in unsealing the

full contents of the Affidavit." D.E. 80 at 12. In that order, the Court observed that the

obstruction and threat concerns raised by the government were "not hypothetical in this

case." Id. at 8. In particular, the Court cited its prior finding of probable cause that a statute

prohibiting obstruction of justice has been violated, and further relied upon the post-search

increase in specific threats of violence to identified FBI agents, overall violent threats to FBI

personnel, and the armed attack on the FBI office in Cincinnati. Id. at 8-9.

1
Based on the government's and the Intervenors' agreement that certain additional
documents (namely, the government's motion to seal, the Court's sealing order, and two
cover sheets) could be publicly released with minor redactions to protect government
personnel, the Court also ordered those documents released. D.E. 74.
2
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under seal to protect information such as witness identities and investigative sources and

methods. Hrg. Tr. at 35.

The government has carefully reviewed the affidavit and has identified five categories

of information that must remain under seal in order to protect the safety of multiple civilian

witnesses whose information was included throughout the affidavit and contributed to the

finding of probable cause, as well as the integrity of the ongoing investigation. In the

attached chart, the government has identified each category that applies to information the

government proposes to redact. Some information falls within more than one category.

The categories, described further below, are (1) information from a broad range of civilian

witnesses who may be subject to "witness intimidation or retaliation," D.E. 80 at 9; (2)

information regarding investigative avenues and techniques that could provide a roadmap for

· potential ways to obstruct the investigation, id. at 9-1 0; (3) information whose disclosure is

prohibited under Rule 6(e) of the Federal Rules of Criminal Procedure ("Rule 6(e)"), such as

grand jury subpoenas, testimony, and related material, id. at 10; (4) information whose

disclosure could risk the safety of law enforcement personnel, id. at 9; and (5) information

. whose disclosure could harm "legitimate privacy interests" of third parties, id.

1. Witness Information

First and foremost, the government must protect the identity of witnesses at this stage

of the investigation to ensure their safety. As this Court noted, if information relating to

witnesses were disclosed, "it is likely that even witnesses who are not expressly named in the

Affidavit would be quickly and broadly identified over social media and other communication

channels, which could lead to them being harassed and intimidated." D.E. 80 at 9. See also,

4
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e.g., Douglas Oil Co. ofCal. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979) (describing the risk that

"prospective witnesses would be hesitant to come forward voluntarily, knowing that those

against whom they testify would be aware of that testimony"); United Stares v. Steinger, 626 F.

-
Supp. 2d 123 l, 1235 (S.D. Fla. 2009) (similar).

Information in

the affidavit could be used to identify many, if not all, of these witnesses. For example, ■

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-
- If witnesses' identities are exposed, they could be subjected to harms including

retaliation, intimidation, or harassment, and even threats to their physical safety. As the

· Court has already noted, "these concerns are not hypothetical in this case." D.E. 80 at 8.

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Meanwhile, FBI agents who have been publicly identified in

connection with this investigation have received repeated threats of violence from members

· of the public. Exposure of witnesses' identities would likely erode their trust in the

government's investigation, and it would almost certainly chill other potential witnesses from

coming forward in this investigation and others.

2. Investigation "Road Map"

As Judge Jordan explained in Steinger, if details about an ongoing investigation are

prematurely disclosed, such disclosures "would compromise the investigation and might also

. lead to the destruction of evidence." 626 F. Supp. 2d at 1235 (citing Douglas Oil Co., 441

U.S. at 218-19); see also, e.g., Patel v. United States, No. 9:l 9-MC-81181, 2019 WL 4251269, at

*5 (S.D. Fla. Sept. 9, 20 I 9) (agreeing with the government that disclosure of information

"would severely prejudice" its investigation, including by "prematurely disclosing its scope

and direction, subjects, and potential witnesses, and could result in the destruction of

evidence"); D.E. 80 at 9-10 (disclosure of investigative "sources and methods" "would

detrimentally affect this investigation and future investigations").

Although the public is now aware that the government executed a search warrant at

the premises owned by the former President and seized documents marked as classified, the

affidavit is replete with further details that would provide a roadmap for anyone intent on

obstructing the investigation. "Maximizing the Government's access to untainted facts

· increases its ability to make a fully-informed prosecutive decision." D .E. 80 at 8.

For example,

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Revealing this information could thus adversely impact the government's pursuit ofrelevant

evidence. 2

In addition, revealing this information could severely disadvantage the government as

---
it seeks further information from witnesses. For example,

2
Additionally, the Court has noted that disclosure of certain information pertaining to
physical aspects of the premises could negatively affect the Secret Service's ability to carry out
its protective functions. D.E. 80 at 10. Although the Department of Justice is not in a
position at this time to assess those potential harms, the information in the affidavit describing
physical aspects of the premises fits within the category of information whose disclosure
would provide a "road map" of investigative techniques and avenues,

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These concerns arc particularly compelling in this case. As explained in the affidavit,

■--

-
In

short, the government has well-founded concerns that steps may be taken to frustrate or

otherwise interfere with this investigation if facts in the affidavit were prematurely disclosed.

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3. Rule 6(e)

The affidavit contains certain information that must be kept under seal pursuant to

Federal Rule of Criminal Procedure 6(e) because it may disclose "a matter occurring before

the grand jury." Although "Rule 6(e) does not draw a veil of secrecy over all matters

occurring in the world that happen to be investigated by a grand jury," it bars disclosure of

information that "would reveal something about the grand jury's identity, investigation, or

deliberation." Labow v. U.S. Dep't of Justice, 831 F.3d 523, 529 (D.C. Cir. 2016) (internal

3
· quotations omitted).

...
-■
·- 4. Safety of Law Enforcement Personnel

Minor but important redactions are necessary to protect the safety oflaw enforcement

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• personnel. See D.E. 80 at 3 (redactions in other materials "are appropriate to protect the

identity and personal safety of' an investigative agent). Specifically, information in the

. affidavit that would identify the affiant, such as by name or through biographical information,

see Aff. i1 4, should remain under seal.

5. Privacy Interests ·-
As the Supreme Court has long recognized, premature disclosure of investigative

information creates a risk that "persons who are accused but exonerated" may be "held up to

public ridicule." Douglas Oil Co., 441 U.S. at 219; see also, e.g., Steinger, 626 F. Supp. 2d at

1235 (disclosure of names of subjects and of matters being investigated "could have

devastating consequences for those persons who have been cleared of any misconduct, as well

as for those still under investigation"). 4 The government recognizes that the former

President has spoken publicly about this investigation and has said in a public statement that

· he wishes for the affidavit to be disclosed in its entirety, although the Court has noted that

"[nleither Former President Trump nor anyone else purporting to be the owner of the

Premises has filed a pleading taking a position on the Intervenors' Motion to Unseal. " 5 D.E.

" Protecting the identities of uncharged individuals is also consistent with government
. counsel's professional responsibilities. See Justice Manual § 9-27.760 ("Limitation on
Identifying Uncharged Third-Parties Publicly").
5
See Perry Stein & Josh Dawsey, "Trump Wants Mar-a-Lago Affidavit Released, As Some
Aides Ponder Risk," Washiniton Post (Aug. 17, 2022), available at
https://ww\'' ·} · · . · I 1 - ·--.

affidavit/.
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80 at 1-2. Nevertheless, the affidavit contains additional information about others that could

harm these individuals' privacy and reputational interests if disclosed.

For example,

- -··

I
Conclusion

For the reasons stated herein, the Court should maintain under seal the text the

government has marked for redaction. The government defers to the Court to determine

whether the redactions are "so extensive that" release of the remainder of the affidavit would

··result in a meaningless disclosure." D.E. 80 at 12. Should the Court order disclosure of a

redacted version of the affidavit, and if the Court agrees with the government's proposed

redactions, the government will submit a final version of the redacted affidavit for public

release.

In the interest of transparency, as well as the principle that limitations on public access

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to judicial proceedings should be "narrowly tailored," Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 607 (1982), the government respectfully submits that certain portions of this

filing may be unsealed, including the introductory segment up through the first two

paragraphs in the Argument section on page 4, as well as certain text in the sections that

follow describing relevant provisions of law. The government will submit a version of this

filing that identifies the portions that can be publicly filed, along with its proposed redactions,

forthwith. And with the Court's permission, the government will confer with counsel for the

former President as to whether counsel or the former President has any objection to unsealing

the letter from counsel included as Exhibit 1 to the affidavit. Absent any such objection, the

. government supports unsealing the letter.

Respectfully submitted,

Is Juan Antonio Gonzalez

JUAN ANTONIO GONZALEZ
UNITED ST ATES ATTORNEY
Florida Bar No. 897388
99 NE 4th Street, 8th Floor
Miami, FL 33132
Tel: 305-961-9001
Email: [email protected]

Is Jay!. Bratt
JAY!. BRATT
CHIEF
Counterintelligence and Export Control
Section
National Security Division
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Illinois Bar No. 6187361
Tel: 202-233-0986
Email: [email protected]

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