USA v. Trump, et al. Document 377: Response In Opposition

Florida Southern District Court
Case No. 9:23-cr-80101-AMC
Filed March 7, 2024

RESPONSE in Opposition by USA as to Donald J. Trump re [325] MOTION to Dismiss [85] Indictment, Based on Unconstitutional Vagueness Replies due by 3/14/2024. (Bratt, Jay)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
______________________________/
GOVERNMENT’S OPPOSITION TO DONALD J. TRUMP’S
MOTION TO DISMISS COUNTS 1-32 BASED ON
UNCONSTITUTIONAL VAGUENESS
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TABLE OF CONTENTS
I.
Background

II.
Argument ........................................................................................................................
A.
A Statute Is Not Vague as Applied when It Gives The Defendant Fair Notice
and Provides Standards for the Exercise of Prosecutorial Discretion...........................
B.
Trump Had Fair Notice that His Conduct Violated Section 793(e).............................. 1.
III.
Courts Have Consistently Upheld Section 793 Against Vagueness
Challenges ............................................................................................................... a.
Unauthorized Possession ..................................................................................
b.
Relating to the National Defense ....................................................................
c.
Entitled to Receive ..........................................................................................
2.
Trump Was Personally on Notice that Classified National Defense
Information Must Be Handled Appropriately .......................................................
3.
Section 793(e)’s Willful Scienter Requirement Alleviates Any Possible
Vagueness as to the Meaning of the Statute’s Other Terms .................................
C.
Section 793 Is Neither Standardless Nor Encourages Discriminatory
Enforcement ................................................................................................................
D.
Trump’s Challenge to Count 19 Lacks Merit ............................................................. Conclusion ........................................................................................................................
i
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Defendant Donald J. Trump moves to dismiss Counts 1-32 of the Superseding Indictment
on the theory that the statute underlying those counts, 18 U.S.C. § 793(e), is unconstitutionally
vague as applied to him. ECF No. 325. Trump’s vagueness argument is meritless.
Trump is
charged with the unauthorized possession and willful retention of national defense information.
The statute’s prohibitions are clear. And as a former President, Trump could not have failed to
understand the paramount importance of protecting the Nation’s national-security and military
secrets, including the obligations not to take unauthorized possession of, or willfully retain,
national defense information. See ECF No. 85 ¶ 24 (Trump stating during his Presidency that,
“[a]s the head of the executive branch and Commander in Chief, I have a unique, Constitutional
responsibility to protect the Nation’s classified information, including by controlling access to
it.”).
The Superseding Indictment charges that Trump defied those demands by delay, deception,
and obstruction.
Trump’s actions are paradigmatic violations of Section 793(e), and there is
nothing vague about the application of the statute to him.
Trump’s claim that he lacked fair notice
of Section 793(e)’s requirements rings hollow.
In claiming that Section 793 is vague as applied to him, Trump relies on three factors: (1)
his former service as a President who acted as the “ultimate Original Classification Authority”; (2)
his “recourse to executive privilege”; and (3) his asserted immunity for official acts.
325 at 2.
ECF No.
These assertions stem from Trump’s pervasive claim that his former service as
President somehow exempts him from the laws and principles of accountability that govern every
other citizen.
case.
But none of the factors he identifies makes Section 793 vague as applied in this
Trump’s legal argument relies on dated law journal articles, newspapers, and inapposite
vagueness cases that do not address Section 793. The decisions that have actually interpreted
Section 793 have rejected similar vagueness claims in case after case, and for good reason.
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Trump’s challenge is likewise unfounded.
For at least three reasons, Trump had fair notice that the conduct alleged violated Section
793: (1) Section 793(e)’s text, as explicated through decades of decisions by the federal courts,
gives it a well-established meaning; (2) Trump was personally put on notice that classified national
defense information may be possessed only by authorized persons and must be handled with
appropriate safeguards; and (3) Section 793(e)’s willfulness requirement—demanding proof
beyond a reasonable doubt that he knew his conduct was unlawful—alleviates any vagueness
concerns. And with respect to Count 19, Trump’s claim that he possessed the requisite security
clearance to view the document charged in that count does not assist him: he cannot make a factual
challenge to the legal sufficiency of a count. Moreover, as the Government’s trial evidence will
show, he did not possess such a clearance, but in any event, no clearance would have authorized
him to possess the document at a social club, frequented by thousands of employees, members,
and visitors, with none of the safeguards required for the handling of that sensitive material.
For
these reasons, the Court should deny Trump’s motion to dismiss on vagueness grounds.
I.
Background
On July 27, 2023, a grand jury in this District returned a Superseding Indictment charging
Trump with, inter alia, 32 counts of willful retention of national defense information, in violation
of 18 U.S.C. § 793(e).
ECF No. 85.
The Superseding Indictment alleges that as part of his
official duties as President, Trump received intelligence briefings from senior members of the
United States Intelligence Community (“USIC”) and regularly received classified intelligence as
part of the “President’s Daily Brief.”
Id. ¶ 20.
On January 20, 2021, Trump ceased to be
President, and as he departed the White House, he took with him scores of boxes, including many
containing classified documents, to the Mar-a-Lago Club in Palm Beach, Florida, where he had a
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residence. Id. ¶ 4.
Id.
“Trump was not authorized to possess or retain those classified documents.”
These documents were created by and implicated the interests of multiple components of the
USIC. Id. ¶ 22.
The classified documents that Trump put in boxes, took from the White House, and moved
to and stored at Mar-a-Lago included classified information about defense and weapons
capabilities of both the United States and foreign countries; United States nuclear programs;
potential vulnerabilities of the United States and its allies to military attack; and plans for possible
retaliation in response to a foreign attack.
Id. ¶ 3.
Trump did not create any of the charged
classified documents; rather, the USIC, the National Security Council, and the Department of
Defense authored the documents and provided them to Trump—31 of which displayed
classification markings indicating that they had to be protected and maintained in appropriate
secure settings.
Yet, following his Presidency, Trump possessed these highly sensitive
documents at the Mar-a-Lago Club and deceptively sought to retain them even after a grand jury
sought their return, see id. ¶¶ 53-63.
The Superseding Indictment charges Trump with 32 counts of the unauthorized possession
and willful retention of documents relating to the national defense, in violation of 18 U.S.C.
§793(e).
Id. ¶ 93.
Section 793(e) provides in relevant part that “[w]hoever having
unauthorized possession of, access to, or control over any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument,
appliance, or note relating to the national defense . . . [and] willfully retains the same and fails to
The document charged in Count 11 is the only charged document that does not bear
classification markings. However, it is plain from the face of the document that its subject
matter—which falls under the categories listed in this paragraph—relates to the national defense.
Trump is also charged with several false statement and obstruction-related offenses
(Counts 33-38, 40, 41), which he does not challenge on vagueness grounds. See ECF No. 85.
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deliver it to the officer or employee of the United States entitled to receive it,” is guilty of an
offense. 18 U.S.C. § 793(e).
II.
Argument
Trump’s vagueness challenge to Section 793 lacks merit.
Section 793, “based on the
original Espionage Act of 1917, has never been successfully challenged in its 100-year history.”
United States v. Schulte, 436 F. Supp. 3d 747, 750 n.7 (S.D.N.Y. 2020).
“Every court that has
considered the constitutionality of Section 793’s various provisions has rejected the same claim[]
of . . . vagueness that the defendant raises.” Id. at 753.
For the reasons below, Trump’s as-
applied challenge fails under the well-established legal standards because Trump had fair notice
that his conduct violated the law and because Section 793 is neither standardless nor encourages
discriminatory enforcement.
A.
A Statute Is Not Vague as Applied when It Gives The Defendant Fair Notice
and Provides Standards for the Exercise of Prosecutorial Discretion
The void-for-vagueness doctrine is a component of the Fifth Amendment right to due
process.
United States v. Williams, 553 U.S. 285, 304 (2008).
The Due Process Clause requires
“that a criminal statute provide adequate notice to a person of ordinary intelligence that his
contemplated conduct is illegal.”
Buckley v. Valeo, 424 U.S. 1, 77 (1976) (per curiam).
A
statute is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice
of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory
enforcement.” Id. Accordingly, “[i]n evaluating a vagueness challenge,” courts “apply [a] twopart standard . . . which ‘requires that [1] a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner
that does not encourage arbitrary and discriminatory enforcement.’” United States v. Awan, F.2d 1415, 1424 (11th Cir. 1992) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)).
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“Vagueness challenges to statutes not threatening First Amendment interests are examined
in light of the facts of the case at hand.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988);
Awan, 966 F.2d at 1424.
Accordingly, Trump’s vagueness claim must be resolved based on the
allegations of the Superseding Indictment as applied to him, not on general attacks on the statutory
terms or on any extraneous facts that he might hope to develop at trial.3 “Where the language
alone sets forth plainly perceived boundaries, no further inquiry is necessary.” United States v.
Duran, 596 F.3d 1283, 1291 (11th Cir. 2010) (citing United States v. Hunt, 526 F.3d 739, (11th Cir. 2008)). In addition, “clarity at the requisite level may be supplied by judicial gloss on
an otherwise uncertain statute.”
United States v. Lanier, 520 U.S. 259, 266 (1997).
Trump contends that Section 793 should be subject to “exacting scrutiny” in this case
simply because the Superseding Indictment includes allegations about his prior statements and
admissions. ECF No. 325 at 5-6 (quoting United States v. Di Pietro, 615 F.3d 1369, 1371 n.(11th Cir. 2010).
That is wrong.
The Superseding Indictment does not allege that Trump’s
public statements about the need to protect classified information violated Section 793. See ECF
No. 85 ¶¶ 23-24, 37.
Those statements do, however, provide powerful evidence of his knowledge
of the laws regarding the protection of national defense information, and they highlight his
willfulness in retaining a trove of classified documents at his residence and social club after he left
office.
Imagine a defendant charged with being a felon-in-possession of firearms who had
publicly touted the importance of laws restricting the possession of firearms by convicted

Trump may not rely on extrinsic facts outside of the indictment. Pursuant to Rule 12 of
the Federal Rules of Criminal Procedure, “an indictment may be dismissed where there is an
infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a
determination of facts that should have been developed at trial.” United States v. Torkington, F.2d 1347, 1354 (11th Cir. 1987); see also United States v. Critzer, 951 F.2d 306, 307 (11th Cir.
1992) (per curiam) (“The sufficiency of a criminal indictment is determined from its face.”).
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criminals—it is inconceivable that a court would apply the law differently in that case simply
because the government intended to use such statements as evidence of knowledge and intent.
When defendants are charged with crimes, their statements may be used as evidence of their
knowledge and intent in committing those crimes, and they may not cloak themselves with First
Amendment protection simply because the government uses their words as evidence.
See
Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) (“The First Amendment, moreover, does not
prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or
intent.”).
The same applies to Trump’s words in his meetings with a publicist, a writer, and a
representative of his political action committee.
See ECF No. 85 ¶¶ 34-36.
Trump is not
charged with the transmission of national defense information based upon his statements in those
meetings. Rather, those statements provide strong evidence that he knew after his Presidency
that he possessed classified documents—and knew that he was no longer, as he puts it in his
motion, the “ultimate Original Classification Authority,” ECF No. 325 at 2. See, e.g., ECF No.
85 ¶ 35 (“Look what I found, this was [the Senior Military Official’s] plan of attack, read it and
just show . . . it’s interesting.”); id. (“This is secret information.”); id. (“See as president I could
have declassified it. . . . Now I can’t, you know, but this is still a secret.”); id. (“this is off the
record”); id. ¶ 36 (Trump telling an individual that he “should not be showing” a classified map to
the individual, so the individual should “not get too close”).
The Superseding Indictment does
not infringe Trump’s protected speech, and he provides no basis to conclude that his words are
entitled to greater protection than those of other defendants. The same standards of vagueness
law apply to Trump as to any other citizen.
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B.
Trump Had Fair Notice that His Conduct Violated Section 793(e)
A Section 793(e) violation requires proof of three elements: (1) unauthorized possession
of a document, (2) that related to the national defense, (3) by a defendant who willfully retained
the document and failed to deliver it to the employee or officer entitled to receive it. 18 U.S.C.
§ 793(e).
The Superseding Indictment charges Trump with Section 793(e) violations based on
allegations that he possessed classified documents at Mar-a-Lago, a residence and social club
frequented by hundreds of employees and thousands of members and guests and without the secure
facilities necessary for safeguarding classified information.
ECF No. 85 ¶¶ 5, 11-13, 18-19.
According to the Superseding Indictment, Trump was aware of the laws protecting classified
information and the need to safeguard documents containing it. Id. ¶¶ 23-24.
Trump’s claim
that he did not have fair warning that his conduct would violate Section 793 is fundamentally
wrong for three independent reasons: (1) the meaning of the text of 793(e) is well established, as
reflected in the many judicial decisions upholding the statute against vagueness challenges; (2)
Trump was personally put on notice of the need to appropriately handle national defense
information; and (3) Section 793(e)’s willfulness requirement alleviates any possible concerns
with respect to the statute’s other terms.
1.
Courts Have Consistently Upheld Section 793 Against Vagueness
Challenges
First, the statutory terms of Section 793(e) have well-established meaning, and the
Supreme Court, as well as other courts to consider the issue, have consistently rejected arguments
that language in Section 793 or its predecessors is impermissibly vague. Trump claims that three
phrases in 793(e) are vague: (a) “unauthorized possession”; (b) “relating to the national defense;
and (c) “entitled to receive it.”
ECF No. 325 at 4.
Those claims are unfounded.
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a.
Unauthorized Possession
“It is difficult to conceive of any language more definite and clear than § 793(e)’s
prohibition against retention of classified information pursuant to unauthorized possession.”
United States v. Ford, 288 F. App’x 54, 56 (4th Cir. 2008). Trump does not argue that there is
any ambiguity in the ordinary meaning of “unauthorized possession.” Nor could he. Because
Section 793 does not define the term “unauthorized,” the term bears its “ordinary meaning.”
Sebelius v. Cloer, 569 U.S. 369, 376 (2013); Campbell v. Universal City Development Partners,
Ltd., 72 F.4th 1245, 1254-55 (11th Cir. 2023).
Dictionary definitions establish that
“unauthorized” means without official approval or permission. See, e.g., Black’s Law Dictionary
(11th ed. 2019); Random House Unabridged Dictionary 139 (2001) (defining “authorization” as
“permission or power granted by an authority”); Webster’s Third International Dictionary (2002) (defining authorization as “the state of being authorized” and defining “authorize” as “to
endorse, empower, justify, permit by or as if by some recognized or proper authority”).
That
definition is consistent with the interpretation of similar terms in other criminal statutes. See,
e.g., United States v. Nosal, 844 F.3d 1024, 1028, 1034-35 (9th Cir. 2016) (“‘[W]ithout
authorization’ [in 18 U.S.C. § 1030(a)(4)] is an unambiguous, non-technical term that, given its
plain and ordinary meaning, means accessing a protected computer without permission”).
Instead, Trump claims “[t]here is far too much indeterminacy” about the phrase
“unauthorized possession” with respect to him personally and “the types of documents at issue.”
ECF No. 325 at 7.
Trump argues that this indeterminacy exists because the charged documents
were “allegedly classified” only because of Trump’s “Original Classification Authority.”
Id.
That is false, and Trump fails to explain how his prior status as an original classification authority
has any bearing on whether he could retain classified documents post-presidency, whether or not
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he had a role in classifying them.
Trump also asserts (ECF No. 325 at 8) that “presidential
discretion to designate records as personal under the [Presidential Records Act (“PRA”)] adds
additional ambiguity” for the reasons set forth in his motion to dismiss based on the PRA, ECF
No. 327.
The Government responds more fully to these arguments in its response to that motion,
but here, a few key points demonstrate that these arguments do not support his as-applied
vagueness challenge.
Congress has long provided that “the President shall, by Executive order or regulation,
establish procedures to govern access to classified information, which shall be binding upon all
departments, agencies, and offices of the executive branch of Government.” 50 U.S.C. § 3161(a);
see National Security Act of 1947, Pub. L. No. 118-31, § 801 61 Stat. 496 (1947), as amended.
And Presidents have issued a series of Executive Orders to govern access to classified information.
The current Executive order—and the one in force throughout Trump’s Presidency and through
the allegations in the Superseding Indictment—is Executive Order (“E.O.”) 13526, issued on
December 29, 2009.
See ECF No. 85 ¶ 14. Under that Order, classified information can be
accessed only by a person who an appropriate United States official determines is eligible for such
access; who has signed an approved non-disclosure order; and who has a “need to know” the
classified information.
E.O. 13526 § 4.1(a).
As the Eleventh Circuit has made clear, the
requirements of E.O. 13526 apply “equally to former Presidents, unless the current administration,
in its discretion, chooses to waive [them].” Trump v. United States, No 22-13005, 2022 WL
4366684, at *8 (11th Cir. Sept. 21, 2022).
Under the provisions of E.O. 13526, the Superseding
Indictment alleges, once Trump left office, he no longer had authorization to possess classified
information, he never received a waiver entitling him, as a former President, to possess it, and he
stored documents at a location that was not an authorized location for the storage, possession,
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review, display, or discussion of classified documents.
ECF No. 85 ¶¶ 4-6, 18-19. Moreover,
the PRA does not authorize the possession of classified information by a former President; indeed,
it does not address that subject at all.
For these reasons, the unambiguous phrase “unauthorized
possession” is not vague as applied to him.b.
Relating to the National Defense
The Supreme Court has held that the phrase “information related to the national
defense,” as used in a predecessor statute to 18 U.S.C. § 793, satisfies the requirements of the Due
Process Clause. Gorin v. United States, 312 U.S. 19, 27-29 (1941).
The Court rejected the
vagueness challenge because it found “no uncertainty in this statute which deprives a person of
the ability to predetermine whether a contemplated action is criminal under the provisions of this
law.”
Id. at 27.
The term “national defense” has “a well understood connotation”; it is “a
generic concept of broad connotations, referring to the military and naval establishments and the
related activities of national preparedness.” Id. at 28.
The Court concluded that “[t]he language
employed appears sufficiently definite to apprise the public of prohibited activities and is
consonant with due process.” Id.
Many courts have recognized the continued vitality of Gorin’s holding, including in cases
involving charges brought under Section 793. See, e.g., United States v. Morison, 844 F.2d 1057,
1073 (4th Cir. 1988) (rejecting vagueness and First Amendment challenges to 18 U.S.C. § 793 by
a naval intelligence officer who transmitted classified satellite photographs of Soviet naval
preparations to a British periodical); United States v. Boyce, 594 F.2d 1246, 1252 n.2 (9th Cir.

Trump also claims that the alleged “vagueness of the phrase ‘unauthorized possession’
. . . gives rise to an impermissible risk of arbitrary enforcement.” ECF No. 325 at 8. His
argument, which is not specific to the “unauthorized possession” language, is addressed under the
second prong of the vagueness test. See infra at 23-24.
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1979) (upholding the language of Sections 793 and 794 against a vagueness challenge); United
States v. Hitselberger, 991 F. Supp. 2d 101, 106 (D.D.C. 2013) (noting that “every court to
consider this issue has consistently rejected a constitutional vagueness challenge to this phrase”
and collecting cases in several circuits); United States v. Kim, 808 F. Supp. 2d 44, 53 (D.D.C.
2011).
Moreover, since Gorin, the phrase “has consistently been construed broadly to include
information dealing with military matters and more generally with matters relating to United States
foreign policy and intelligence capabilities.” United States v. Rosen, 445 F. Supp. 2d 602, (E.D. Va. 2006); see also United States v. Drake, 818 F. Supp. 2d 909, 918 (D. Md. 2011).
(“Defendant’s argument has been rejected, as this phrase has a consistently adopted and applied
meaning.”).
Trump attempts to distinguish Gorin on the grounds that the Supreme Court addressed a
different provision of the predecessor statute to the Espionage Act and that the Court noted what
it referred to as “delimiting words” in the statute—“intent or reason to believe that the information
to be obtained is to be used to the injury of the United States, or to the advantage of any foreign
nation”—in finding that the predecessor statute was not vague. Gorin, 312 U.S. at 27-28.
See
ECF No. 325 at 9-10. Trump claims that Gorin is inapplicable because the Government need not
prove that intent to prove a violation of Section 793(e).
three reasons.
But this purported distinction fails for
First, the relevance of the intent standard in Gorin is that it “requires those
prosecuted to have acted in bad faith”; “[t]he sanctions apply only when scienter is established.”
Id. at 28.
Section 793 also has a stringent scienter requirement—that the defendant must have
acted “willfully”—and thus the Supreme Court’s vagueness analysis in Gorin also applies to
Section 793(e). See infra at 22-23. Second, Gorin separately addressed the phrase “relating to
the national defense,” holding that “the use of the words ‘national defense’ [in prior statutes] has
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given them, as here employed, a well understood connotation.” Id.
The Court explained that
the phrase “refer[s] to the military and naval establishments and the related activities of national
preparedness.” Id.
The phrase “relating to the national defense” is the same in both the statutes
at issue in Gorin, id. at 22 n.1 (quoting pertinent provisions), and Section 793(e), so Gorin’s
definitive interpretation equally governs here.
Third, the cases interpreting Section 793(e)
discussed above relied on Gorin, with none suggesting that Gorin’s analysis of the relevant
language did not apply to 793(e).
Trump’s effort to disregard Gorin’s holding should be rejected.
Trump argues that “relating to the national defense” is vague because of judicial glosses
on the statutory text.
See ECF No. 325 at 10-11. But those well-settled judicial interpretations
narrow and clarify the text; they do not create unconstitutional vagueness. Courts have held that
information must be “closely held” to constitute national defense information. Gorin initially
explained that when “there is no occasion for secrecy, as with reports relating to national defense,
published by authority of Congress or the military departments,” the intent standard of the statute
at issue “in all likelihood” would not be satisfied. 312 U.S. at 28. Courts have since explicitly
“limited the term [document or other material ‘relating to the national defense’] by requiring that
the information be closely held by the government.” Rosen, 445 F. Supp. 2d at 620 (citing United
States v. Heine, 151 F.2d 813 (2d Cir. 1945)); see also United States v. Campa, 529 F.3d 980, (11th Cir. 2008) (national defense information “is limited to information that the government has
endeavored to keep from the public”).
This objective limitation on the scope of the statute
clarifies and narrows it.
Trump objects that courts have no license to read words into a statute. ECF No. 325 at

The Fourth Circuit has also imposed another limitation on the phrase “information
relating to the national defense,” requiring that its “disclosure would be potentially damaging to
the United States or useful to an enemy of the United States.” Morison, 844 F.2d at 1071-72.
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10-11.
But giving a statute a narrowing construction is a well-established practice that has special
force when necessary to avoid questions of constitutional vagueness.
See Skilling v. United
States, 561 U.S. 358, 405 (2010) (“It has long been our practice, however, before striking a federal
statute as impermissibly vague, to consider whether the prescription is amenable to a limiting
construction.”).
And while the Due Process Clause “bars courts from applying a novel
construction of a criminal statute to conduct that neither the statute nor any prior decision has fairly
disclosed to be within its scope,” the Supreme Court has left no doubt that “clarity at the requisite
level may be supplied by judicial gloss on an otherwise uncertain statute.”
Lanier, 520 U.S. 259, 266 (1997).
United States v.
Even if there were uncertainty in Section 793(e), the
longstanding gloss provides fair notice.
Trump would turn this rationale on its head, arguing that the statutory language cannot be
“saved through judicial gloss.”
ECF No. 325 at 11 (citing United States v. Davis, 139 S. Ct.
(2019); Johnson v. United States, 576 U.S. 591 (2015)); see also id. at 3, 6 (citing Sessions v.
Dimaya, 138 S. Ct. 1204 (2018)).
The cases that Trump cites, however, are inapposite and
prohibit no such thing. Johnson, Dimaya, and Davis addressed the residual clauses in the Armed
Career Criminal Act (18 U.S.C. § 924(e)), the generic crime-of-violence definition in the Criminal
Code (18 U.S.C. § 16(b)), and the offense of using, carrying, or possessing a firearm in connection
with a crime of violence (18 U.S.C. § 924(c)), and found all three provisions unconstitutionally
vague.
See Jones v. United States, 82 F.4th 1039, 1048 (11th Cir. 2023). As the Supreme Court
explained in Davis, the most recent of the decisions, the provisions at issue in Johnson and Dimaya
were struck down because they required courts to “imagine the idealized ‘ordinary case,” rather
than how “the defendant actually committed his crime.”
139 S. Ct. at 2326.
The teaching of
those cases is that “the imposition of criminal punishment can’t be made to depend on a judge’s
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estimation of the degree of risk posed by a crime’s imagined ‘ordinary case.’” Id.
In Davis, the
government urged the Court to adopt a new meaning for the same text, this time as found in Section
924(c), by interpreting the relevant phrase to turn on the defendant’s actual conduct, rather than a
judicially imagined hypothetical ordinary case.
Id.
The Supreme Court rejected that novel
approach as inconsistent with the phrase’s text, context, and history, id. at 2328, and it held the
provision at issue unconstitutionally vague, id. at 2336. The Court also expressed concern that
the Government was asking the court to “expand the reach of a criminal statute in order to save
it.” Id. at 2332.
This judicial gloss on Section 793(e)—limiting national defense information to information
that is closely held—does not expand but instead restricts the statute’s reach. And in limiting the
definition of national defense information, courts have not adopted a meaning of “relating to the
national defense” that is inconsistent with the statute itself or inconsistent with how that phrase is
used elsewhere.
In short, none of the concerns that animated Johnson, Dimaya, and Davis is
present here, and courts have uniformly held—notably, both before after these Supreme Court
decisions—that “relating to the national defense” is not unconstitutionally vague.
c.
Entitled to Receive
Trump’s final challenge is to the “entitled to receive” language in Section 793(e).
Challenges to this element have uniformly failed because “the rule regulating who is ‘entitled to
receive’ is the Executive Order setting forth a uniform classification system for national security
information.” Rosen, 445 F. Supp. 2d at 622; see Morison, 844 F.2d at 1074 (“[C]ourts have
recognized the legitimacy of looking to the classification system for fleshing out the phrases such
as that in question here.”); Schulte, 436 F. Supp. 3d at 753 (rejecting vagueness challenge on same
basis); Kim, 808 F. Supp. 2d at 54 (same); United States v. Morison, 604 F. Supp. 655, 662 (D.
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Md. 1985) (“The phrase ‘not entitled to receive;’ is not at all vague when discussed in reference
with the classification system, which clearly sets out who is entitled to receive (those with proper
security clearances and the ‘need to know’”)).
Trump’s as-applied challenge is particularly infirm in light of his former status as a
President. Before, during, and after his time as President, an Executive Order clearly set forth
who is entitled to receive classified information. And, as Trump stated on July 26, 2018, “[a]s
the head of the executive branch and Commander in Chief, I have a unique, Constitutional
responsibility to protect the Nation’s classified information, including by controlling access to it.”
ECF No. 85 ¶ 24.
Given that backdrop, he can hardly feign ignorance and a lack of clear notice.
Cf. Morison, 844 F.2d at 1074 (“Certainly the phrase ‘not authorized to receive it’ was well
understood by the defendant.
As to him, the statute was not vague in its reference to ‘one not
entitled to receive it.’”). As set forth above, E.O. 13526 restricts access to classified information
to individuals who have a favorable determination of eligibility, have signed an approved
nondisclosure agreement, and have a need-to-know the information.
E.O. 13526 § 4.1(a).
Accordingly, the “executive branch’s classification regulations . . . provide the requisite
constitutional clarity.” Rosen, 44 F. Supp. 2d at 623.Trump’s attempt to distinguish these cases is unavailing.
Trump first claims that the
“entitled to receive” clause is vague as applied to him because it is unclear who would be “entitled”
to “receive” records that a former President designated as personal. ECF No. 325 at 11. There
is no evidence that Trump designated such records as “personal,” and the nature of the classified

Moreover, Trump has offered no theory (nor could he offer a plausible theory) that
alleged vagueness regarding who was entitled to receive the documents is responsible for his
conduct; he certainly cannot claim that he attempted to return the documents but is being charged
because he returned them to the wrong individual.
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documents at issue in this case would make any such claim factually incredible and legally
impossible.7 And Trump provides no authority for the proposition that a supposed designation of
highly classified records created by members of the USIC as “personal” would have any bearing
on who would be entitled to receive them. See ECF No. 373 at 5-12.
Trump claims (ECF No. 325 at 11-12) that Rosen is inapposite because that case involved
a transmission-of-information, rather than retention-of-documents, prosecution under Section
793(e).
See 18 U.S.C. § 793(e) (penalizing a person in unauthorized possession of information
relating to the national defense who “willfully communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause
to be communicated, delivered, or transmitted the same to any person not entitled to receive it,”
or “willfully retains the same and fails to deliver it to the officer or employee of the
United States entitled to receive it”) (emphasis added).
The “entitled to receive it” wording is
identical in both clauses, and it is illogical that it would have two different meanings within the
same subsection of a single statute. “In all but the most unusual situations, a single use of a
statutory phrase must have a fixed meaning.” Cochise Consultancy, Inc. v. United States ex rel.
Hunt, 139 S. Ct. 1507, 1512, (2019); see also Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 479 (1992) (relying on “the basic canon of statutory construction that identical terms within
an Act bear the same meaning”).
Trump then urges this Court to reject the reasoning of Morison and Rosen (and presumably

The PRA defines “Presidential records” and personal records. See 44 U.S.C.
§§ 2201(2), 2202(3)). By no stretch can classified records created by the USIC for the
President’s review be deemed documents “of a purely private or nonpublic character which do not
relate to or have an effect upon the carrying out of the constitutional, statutory, or official or
ceremonial duties of the President.” They obviously do “relate to or have an effect on” such
duties, and Trump provides no evidence to the contrary, nor could he.
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the multiple cases outside the Fourth Circuit, such as Schulte and Kim, supra) for three
unpersuasive reasons.
First, he claims that Morison was based on a misconstruction of the
Classified Information Procedures Act, 18 U.S.C. App. 3 (“CIPA”).
ECF No. 325 at 12.
But
Morison did not rely on CIPA; instead, the court of appeals simply affirmed the district court
decision, which explained that the classification system sets forth who is entitled to access
classified information. See 844 F.2d at 1074; 604 F. Supp. 662. CIPA was not at issue.
Second, he asserts (ECF No. 325 at 12) that Morison’s reliance on the classification system
was “much more than a ‘gloss,’” and instead “violated separation of powers by reading into the
statute an implied rulemaking delegation to the Executive Branch,” whereas Congress did not
authorize the Executive Branch in Section 793 to engage in rulemaking, id. at 13. But a court’s
reliance on the Executive Branch’s existing classification system setting forth who can receive
classified information and in what circumstances—as the Constitution authorizes the President to
do—does not amount to an implied rulemaking delegation. The cases Trump cites arose in a
completely different context.
Those cases involved congressional delegations of authority to
administrative agencies, which found the delegations are valid so long as Congress establishes an
“intelligible principle” for the agency’s action. See Consumers’ Research, Cause Based Com.,
Inc. v. FCC, 88 F.4th 917, 923 (11th Cir. 2023); Gundy v. United States, 139 S. Ct. 2116, (2019) (plurality opinion).
In Section 793(e), by contrast, Congress prohibited certain acts
depending on whether a person is “entitled to receive national-security-related information,”
without providing itself a definition of who is so entitled. As Trump himself has acknowledged,
see ECF No. 85 ¶ 24, the President as Commander in Chief has the constitutional authority to make
those determinations. U.S. Const. Art. II, § 2. The President has the constitutional authority
and responsibility “to classify and control access to information bearing on national security,” to
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determine “whether an individual is sufficiently trustworthy” to have “access to such information,”
and to determine an individual’s need-to-know such information, all “flow[ing] primarily from
this constitutional investment of power in the President” that “exists quite apart from any explicit
congressional grant.” Department of Navy v. Egan, 484 U.S. 518, 527 (1988).
And E.O.
reflects those presidential determinations, which the National Security Act contemplates the
President will make.
Accordingly, no congressional delegation of authority to the President is
needed, and judicial use of the Executive Order to provide content for terms under Section does not constitute an implied delegation.Trump’s reliance on Duran, in which the Eleventh Circuit rejected a vagueness challenge
to 18 U.S.C. § 951, is also misplaced.
ECF No. 325 at 13 (citing Duran, 596 F.3d at 1291).
Although the Eleventh Circuit noted that the statute and associated regulations defined some of
the terms in Section 951 (e.g., “agent” and “agent of a foreign government”), it never suggested
that, had the terms not been explicitly defined, it would have found the statute to be
unconstitutionally vague.
To the contrary, the Eleventh Circuit stressed the “strong presumption
supporting the constitutionality of legislation,” and applied the principle that “[w]here the language
alone sets forth plainly perceived boundaries, no further inquiry is necessary.” Duran, 596 F.3d

Even if this were understood as a delegation, which it is not, “when a congressional
statute confers wide discretion to the executive, no separation-of-powers problem may arise if the
discretion is to be exercised over matters already within the scope of executive power.” Gundy,
139 S. Ct. at 2137 (Gorsuch, J., dissenting) (quotation marks omitted). That would be the case
here.
Pursuant to 18 U.S.C. § 951(a), “[w]hoever, other than a diplomatic or consular officer
or attaché, acts in the United States as an agent of a foreign government without prior notification
to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned
not more than ten years.” Subsection (b) specifies that “[t]he Attorney General shall promulgate
rules and regulations establishing requirements for notification.”
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at 1290-91. And, while the statute at issue in Duran was a “general intent crime, as there is no
mens rea element on the face of the statute,” id. at 1292, Section 793(e) requires the government
to prove that the defendant acted “willfully.”
As discussed below, “scienter requirements
alleviate vagueness concerns.” Gonzalez v. Carhart, 550 U.S. 124, 149 (2007).
Finally, Trump wrongly claims that E.O. 13526 § 6.1(hh) “excludes from the definition of
‘records’ materials that are designated as Presidential Records under the PRA.” ECF No. 325 at
14. To the contrary, the cited provision defines “records” as encompassing “the records of an
agency and Presidential papers or Presidential records, as those terms are defined in title 44,
United States Code.” E.O. 13526 § 6.1(hh) (emphasis added). He also claims that the E.O.’s use
of the term “need-to-know” is ambiguous. ECF No. 325 at 14. But “need-to-know” is a
principle applied with respect to all dissemination of classified information, see E.O. 13526 §
4.1(a), and it is defined in the EO as “a determination within the executive branch in accordance
with directives issued pursuant to this order that a prospective recipient requires access to specific
classified information in order to perform or assist in a lawful and authorized governmental
function,” id. § 6.1(dd). In short, the phrase “entitled to receive” is well defined through the
executive order, and Trump’s vagueness challenge fails.
2.
Trump Was Personally on Notice that Classified National Defense
Information Must Be Handled Appropriately
Not only do Section 793(e)’s text and judicial interpretations provide fair notice, but
Trump’s fair-notice claim is particularly weak and implausible because Trump was personally on
notice concerning the importance of proper handling of classified national defense information.
He acknowledged as much both before and during his presidency. See ECF No. 85 ¶¶ 23-24, 37.
Moreover, Trump obtained the charged documents during his term as Commander in Chief
through intelligence briefings he received from high-level United States government officials.
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Id. ¶ 20.
The allegations in the indictment alone show that he appreciated the legal imperative to
appropriately handle such highly sensitive documents.
Two other contextual factors eliminate any doubt.
First, the classification markings on
the documents put Trump on notice of the sensitivity of the documents, just as they would any
other person.
The documents underlying 31 of the 32 charged counts were marked either
SECRET, a classification level that applies to information the unauthorized disclosure of which
reasonably could be expected to cause serious damage to the security of the United States, or TOP
SECRET, a classification level that applies to information the unauthorized disclosure of which
reasonably could be expected to cause exceptionally grave damage to the national security. See
E.O. 13526; ECF No. 85 ¶ 93.
Many of the charged documents also are alleged to contain
additional controlled Sensitive Compartmented Information markings. ECF No. 85 ¶ 93.
Second, the contents of the documents themselves reinforce the obvious fact that these
documents—which were presented to the sitting Commander in Chief—contained nationalsecurity information that the Government keeps closely held.
See Hitselberger, 991 F. Supp. 2d
101, 106 (“Mr. Hitselberger’s vagueness challenge is particularly unpersuasive in light of the
alleged content of the documents he retained.
The documents contained highly sensitive
information. . . . These documents were marked as SECRET.”); see also Schulte, 436 F. Supp. 3d
at 753; Kim, 808 F. Supp. 2d at 53.
The documents included information “regarding defense and
weapons capabilities of both the United States and foreign countries; United States nuclear
programs; potential vulnerabilities of the United States and its allies to military attack; and plans
for possible retaliation in response to a foreign attack.” ECF No. 85 ¶ 3. Their unauthorized
disclosure “could put at risk the national security of the United States, foreign relations, the safety
of the United States military, and human sources and the continued viability of sensitive
20
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intelligence collection methods.” Id.
As illustrated above, Trump’s own statements show that he was on notice about the
consequences of mishandling classified information.
Even before taking office, Trump made
statements such as, “In my administration I’m going to enforce all laws concerning the protection
of classified information. No one will be above the law,” indicating that he knew laws governing
classified information apply to everyone.
ECF No. 85 ¶ 23.
While in office, Trump specifically
highlighted his knowledge that the appropriateness of accessing classified information changes
after one’s term in office ends, stating, “More broadly, the issue of [a former executive branch
official’s] security clearance raises larger questions about the practice of former officials
maintaining access to our Nation’s most sensitive secrets long after their time in Government has
ended,” and that any ongoing access must be to advance “national, not personal, interests.” Id.
¶ 24.
When displaying classified information post-presidency, he acknowledged that he could
no longer declassify it and that an individual present should not get “too close.” Id. ¶¶ 34-36.
There is no basis for Trump to claim that he did not understand the sensitivity of the information
or that it was unlawful to retain the charged documents outside spaces authorized for the storage
of classified information, and while he may choose to make that argument to a jury, it provides no
basis to dismiss the charges at this stage of the proceedings.
3.
Section 793(e)’s Willful Scienter Requirement Alleviates Any Possible
Vagueness as to the Meaning of the Statute’s Other Terms
Even if any questions remained about the scope of Section 793(e) as applied to Trump, and
even if Trump had not personally been put on notice of its requirements, Trump’s vagueness
challenge would still fail.
That is because “a scienter requirement may mitigate a law’s
vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is
proscribed.” Village of Hoffman Estates v. Flipside, 455 U.S. 489, 499 (1982). That is the case
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here. To prove a violation of § 793(e), the government must establish that Trump acted willfully.
Although Trump points to the variable meanings that willfulness may have in other contexts, ECF
No. 325 at 15, the meaning of willfulness is clear in this context—the Government must show that
Trump knew his conduct was unlawful. See Bryan v. United States, 524 U.S. 184, 195 (1998);
United States v. Brown, No. 21-cr-348, ECF No. 304, at 22 (M.D. Fla. Dec. 12, 2022) (defining
“willfully”); Drake, 818 F. Supp. 2d at 916 (“To prove Mr. Drake unlawfully retained documents
under Section 793(e), the Government need prove only that he acted with simple willfulness.”).
As the Supreme Court has repeatedly said, such “scienter requirements alleviate vagueness
concerns.” Gonzalez, 550 U.S. at 149; see also United States v. Ragen, 314 U.S. 513, 524 (1942)
(“A mind intent upon willful evasion is inconsistent with surprised innocence.”). And courts have
applied that principle specifically in the context of Section 793. See, e.g., Hitselberger, 991 F.
Supp. 2d at 107 (“[E]ven a simple scienter requirement may mitigate a statute’s vagueness . . . .);
Kim, 808 F. Supp. 2d at 53 (“[A]ny vagueness concerns about the meaning of ‘information relating
to national defense’ are eliminated by the other limitations in the statute, most importantly the
willfulness requirement.”); Rosen, 445 F. Supp. 2d at 625 (defendant’s unconstitutional vagueness
argument “must ultimately fail” because Section 793 “requires the government to prove the
defendants ‘willfully’ committed the prohibited conduct”) (quotation marks and citations omitted).
The same analysis applies here.
If Trump wishes to testify at trial that he was truly
unaware during the relevant time period that he was not allowed to retain the charged documents,
then he can present that defense and ask the jury to find that he did not act willfully. Such factual
issues are for the jury to resolve. See Gorin, 312 U.S. at 32; Morison, 844 F.2d at 1073-74.
They neither render Section 793(e) unconstitutionally vague nor provide a basis for the pretrial
dismissal of an indictment.
22
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C.
Section 793 Is Neither Standardless Nor Encourages Discriminatory
Enforcement
Finally, Trump contends that § 793(e) is unconstitutionally vague because it is not enforced
uniformly.
See ECF No. 325 at 8, 15-16.
That claim, too, fails.
Due process requires
legislatures to “establish minimal guidelines to govern law enforcement,” Kolender v. Lawson,
461 U.S. 352, 358 (1983) (quotation marks omitted), and such guidelines exist here in the form of
the elements of Section 793(e) and the text of E.O. 13526.
In a criminal prosecution, the
government must prove each of the elements of Section 793 beyond a reasonable doubt, and none
of the terms of Section 793(e) affords prosecutors leeway to take arbitrary action. Moreover,
“[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been proved; but rather the indeterminacy of
precisely what that fact is.” United States v. Williams, 553 U.S. 285, 306, (2008). Thus, the
Court has “struck down statutes that tied criminal culpability to whether the defendant’s conduct
was ‘annoying’ or ‘indecent’—wholly subjective judgments without statutory definitions,
narrowing context, or settled legal meanings.” Id. “There is no such indeterminacy here.”
Id.
And the need to satisfy the scienter requirement in Section 793 eliminates any concern that
Trump’s prosecution reflects an arbitrary exercise of prosecutorial authority. See Gonzalez, U.S. at 150 (“The scienter requirements narrow the scope of [an] [a]ct’s prohibition and limit
prosecutorial discretion.”); see also United States v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003) (“The
intent requirement alone tends to defeat any vagueness challenge based on the potential for
arbitrary enforcement.”) (citing United States v. Carlson, 87 F.3d 440, 444 (11th Cir. 1996)); Kim,

Trump’s argument that there are “numerous examples of cases involving similar
circumstances where prosecutors brought no charges,” ECF No. 325 at 8, is wrong. See generally
ECF No. 375.
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808 F. Supp. 2d at 55 (“[T]he willfulness requirement in the statute effectively eliminates any
concerns that Defendant may have been subject to arbitrary enforcement.”).
For that reason as
well, Trump’s due process vagueness claim fails.
D.
Trump’s Challenge to Count 19 Lacks Merit
Trump’s final argument is that Count 19 must be dismissed because Trump maintained the
required security clearance for the document underlying that count.
ECF No. 325 at 16-17. His
argument provides no legal basis to dismiss the charge, for several reasons.
First, the
Superseding Indictment properly tracks the statutory language and charges that Trump possessed
the document charged in Count 19 without authorization and willfully retained it. ECF No. ¶ 93.
Nothing more is required at this stage of the proceedings, and the Court should reject
Trump’s invitation to peer behind the indictment to evaluate the underlying evidence. See United
States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) (in considering a motion to dismiss, the
court “is limited to reviewing the face of the indictment and, more specifically, the language used
to charge the crimes”).
Second, at trial the Government will show that the evidence identified by Trump shows
that he did not possess a security clearance after the end of his term in office.
As reflected in
records produced in discovery and cited by Trump, “as a matter of law, the Q clearance granted to
Donald J. Trump on February 9, 2017, terminated, by the conditions of its original grant, upon the
completion of Mr. Trump’s term as President of the United States at 12:00 PM on January 20,
2021.”
ECF No. 262, Ex. 59 at USA-01116848.
Whether or not the Department of Energy’s
(“DOE”) records were up to date or continued to reflect an active Q clearance after Trump’s term
had ended, it has no bearing on Trump’s actual entitlement to access documents requiring a Q
clearance.
Third, even if Trump possessed a Q clearance at any time after his Presidency (which he
24
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did not), that would still not entitle him to possess the document charged in Count 19 at Mar-aLago, an active social club that was not an authorized location for the storage, possession, review,
display, or discussion of classified documents. ECF No. 85 ¶ 5.
Thus, Trump’s retention of the
document was unauthorized and willful, as charged in the Superseding Indictment.
Finally, Trump offers no evidence that he was aware at any time of what DOE’s internal
records reflected regarding his Q clearance, and thus those records could not bear on his state of
mind.
Count 19 of the Superseding Indictment properly charges Trump with unauthorized and
willful retention of a document containing national defense information, and there is no legal basis
to dismiss the charge.
III.
Conclusion
For the foregoing reasons, the Court should deny Trump’s motion to dismiss the Section
793 counts under the vagueness doctrine.
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Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A950 Pennsylvania Avenue, N.W.
Washington, D.C. David V. Harbach, II
Assistant Special Counsel
Special Bar ID #AJulie A. Edelstein
Senior Assistant Special Counsel
Special Bar ID #A
March 7,
26
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CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
27
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