Donald J. Trump v. United States, No. 22-81294 (AMC).  Movant’s Reply to United States’ Response to Motion for Judicial Oversight and Additional Relief, filed August 31, 2022.  Hearing September 1, 2022 at U.S. District Court in Florida at 1 p.m. 

Counsel for former president Donald J. Trump argue that no precedent exists for the government’s argument that in the absence of a property interest –that interest to be determined by the government — an individual seeking to challenge a search and seizure of his residence has no recourse because, in the absence of a property interest — that interest to be determined by the government — the individual who lacks an ownership interest in materials seized lacks standing to seek review.  In the absence of standing, the court has no power to hear the case.  

The government’s argument, counsel have submitted, has no support in extant Fourth Amendment jurisprudence, which recognizes that it is governmental intrusion that is central to the Fourth Amendment’s restrictions on governmental power.  What is necessary is “a legitimate expectation of privacy in the premises searched or the items seized.” Reply Memorandum at 5, quoting United States v. Rackley, 742 F.2d 1266, 1270 (11th Cir. 1984).   The government’s position is not only in error as a matter of constitutional law, but the government fails to recognize that the question before the court is the propriety of appointment of a Special Master, which is directed to the power of the court to grant equitable relief. 

Counsel for the former president observe that any authority to conduct privilege review presented within the application for the warrant issued prior to the search and seizure at Mar-a-Lago was narrowly constrained a a certain portion of the property, yet as the government insists that its review is complete, it would appear that the government exceeded those bounds. 

The government’s argument that the court ought not insert itself into what has been styled a ‘national security’ review by a government entity cannot succeed.  Power to adjudicate matters relating to governmental exercise of powers is at the core of the need for a federal judiciary.  

Counsel note that the government has not conducted itself with the high standards which it purports to uphold, as evidence by the dramatic — and apparently staged — submission to the court of a photograph showing documents bearing “classified” cover sheets.

The former president is in need of an inventory of items seized in order to assert his interests in materials gathered through use of criminal process in a matter that ought to have been a routine discussion of items sought for a presidential library under the Presidential Records Act.  

Movant’s Reply to United States, No. 22-81294 August 31, 2022