Page 1 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 1 of
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 WALTINE NAUTA’S
MOTION TO SUPPRESS EVIDENCEPage 2 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 2 of
TABLE OF CONTENTS
I.
Factual Background ............................................................................................................ A.
The Nauta Warrants ......................................................................................................
B.
The Warrant Affidavits .................................................................................................
II.
Argument ........................................................................................................................
A.
III.
Probable Cause.............................................................................................................. 1.
The Affidavits Established Probable Cause for All the Listed Offenses ................
2.
The Good-Faith Exception Forecloses Suppression .............................................
B.
There Were No Materially Misleading Omissions in the Affidavits ..........................
C.
Particularity and Overbreadth .....................................................................................
D.
Execution of the Search Warrants Was Reasonable ...................................................
E.
No Due Process Violations ......................................................................................... Conclusion ........................................................................................................................
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Defendant Waltine Nauta moves to suppress evidence obtained through the execution of
court-authorized warrants to search his cell phones and electronic accounts. Waltine Nauta’s
Motion to Suppress Evidence (“Mot.”). 1 Nauta identifies no material omissions or deficiencies in
the warrants or the manner in which they were carried out that would remotely support a hearing
or suppressing the evidence obtained through those warrants. To the contrary, the warrants were
supported by probable cause and were executed appropriately. The findings of probable cause by
the Chief Judge in the District of Columbia and the magistrate judge in this district were correct.
In any event, those findings are entitled to deference and were relied on in good faith by the agents
who executed the warrants. The suppression motion should be denied.
I.
Factual Background
A.
The Nauta Warrants
In October and November 2022, Magistrate Judge Bruce E. Reinhart issued warrants to
search (1) Nauta’s two Apple iPhone cell phones (Gov’t Ex. 1); (2) Nauta’s car in Florida for the
limited purpose of seizing Nauta’s two iPhones (Gov’t Ex. 2); (3) Nauta’s West Palm Beach
apartment for the limited purpose of seizing Nauta’s two iPhones (Gov’t Ex. 3); (4) Nauta’s work
email account (Gov’t Ex. 4); (5) Nauta’s personal iCloud account, which was linked to both his
iPhones (Gov’t Ex. 5); and (6) Nauta’s work iCloud account linked to his work phone (Gov’t Ex.
6). 2 The same FBI special agent provided affidavits in support of each of these warrants (the
“South Florida warrants”).
Nauta’s motion has not yet been docketed publicly or received an ECF number. This
response does not require redactions and therefore the Government files it on the public docket,
but pursuant to the Court’s order (ECF Nos. 320, 365), the Government will seek redactions to the
ten Government exhibits cited in this response and will submit those exhibits to the Court by email.
Because the FBI seized Nauta’s two cell phones outside his residence based on warrant
(1), warrants (2) and (3) were not executed and, accordingly, there is no evidence to suppress from
those two warrants.
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On February 6, 2023, Chief Judge Beryl Howell in the District of Columbia issued warrants
for (7) Google location data for Nauta’s Google account (Gov’t Ex. 7), and (8) Verizon cellsite
location data for Nauta’s phones (Gov’t Ex. 8). A different FBI special agent provided affidavits
in support of these warrants (the “D.C. warrants”). To avoid intrusion into any potentially privileged material, the South Florida warrants
contained the following filter protocol for potential attorney-client privilege:
NAUTA has been represented by attorneys in this matter since at least in or around
May 2022. A Filter Team will review seized communications and segregate
potentially protected materials, i.e., communications that are to/from an attorney,
or that otherwise reference or reflect attorney advice. The Filter Team will have no
future involvement in the investigation of this matter. At no time will the Filter
Team advise the Prosecution Team of the substance of any of the potentially
protected materials. The Filter Team then will provide all communications that are
not potentially protected materials to the Prosecution Team and the Prosecution
Team may resume its review. If at any time the government identifies seized
materials that are potentially attorney-client privileged or subject to the work
product doctrine (“protected materials”), the Prosecution Team will discontinue
review until a Filter Team of government attorneys and agents can review the
potentially privileged documents. If the Filter Team concludes that any of the
potentially protected materials are not protected (e.g., the communication includes
a third party or the crime-fraud exception applies), the Filter Team must obtain
either agreement from defense counsel for the privilege holder or a court order
before providing these potentially protected materials to the Prosecution Team. If
possible, government attorneys will engage with the privilege holder to resolve
privilege determinations before proceeding to court for judicial review.
There was nothing improper, as Nauta insinuates, about the Government obtaining the
location warrants in D.C. after having obtained warrants for Nauta’s phones and electronic
accounts in the Southern District of Florida. The Southern District of Florida was the proper venue
to seek the phone warrants because Nauta’s phones were physically located in West Palm Beach
at the time, see Fed. R. Crim. P. 41(b)(1), and, for efficiency, the Government appropriately sought
warrants for electronic accounts associated with those phones at the same time. It was also
appropriate to apply for the location data warrants in D.C. in February 2023. At the time, a grand
jury in D.C. was actively investigating obstruction of the grand jury’s investigation by Nauta and
others, and under the Stored Communications Act, venue existed for obtaining the warrants in any
court having jurisdiction over the offenses being investigated. See 18 U.S.C. § 2711(3)(A)(i).
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Gov’t Ex. 1 ¶ 64; Gov’t Exs. 2 and 3 ¶ 65; Gov’t Ex. 4 ¶ 62; Gov’t Ex. 5 ¶ 80; Gov’t Ex. 6 ¶ 79.
The D.C. warrants did not contain a filter protocol because those warrants only sought location
information, not the contents of electronic communications, and therefore would not yield
privileged communications.
B.
The Warrant Affidavits
The affidavits alleged the following facts supporting probable cause. Unless otherwise
noted, these facts were included in each of the Nauta warrants.
Nauta is an employee of defendant Donald J. Trump and had been a valet in the White
House during Trump’s administration. Nauta previously held a high-level security clearance and
received training in handling classified documents. Gov’t Exs. 1, 2, and 3 ¶ 10; Gov’t Exs. 4, 5,
and 6 ¶ 11; Gov’t Exs. 7 and 8 ¶ 12.
During his presidency, Trump used dozens of boxes to accumulate and store records in an
informal filing system. Gov’t Exs. 1, 2, and 3 ¶ 12; Gov’t Exs. 4, 5, and 6 ¶ 13; Gov’t Exs. 7 and
8 ¶ 14. At the end of his presidency in January 2021, around 85 to 95 of these boxes were removed
from the White House and transported to Mar-a-Lago, Trump’s residence in Palm Beach, Florida,
where they were later placed in a storage room. Gov’t Exs. 1, 2, and 3 ¶¶ 14-17; Gov’t Exs. 4, 5,
and 6 ¶¶ 15-18; Gov’t Exs. 7 and 8 ¶¶ 16-19. Nauta was part of the team that packed items into
boxes for Trump in his residence at the White House for the move to Mar-a-Lago at the end of
Trump’s presidency in January 2021. Gov’t Exs. 1, 2, and 3 ¶ 13; Gov’t Exs. 4, 5, and 6 ¶ 14;
Gov’t Exs. 7 and 8 ¶ 5. Throughout 2021, the National Archives and Records Administration
(“NARA”) had ongoing communications with Trump’s representatives to obtain records from his
administration. Gov’t Exs. 1, 2, and 3 ¶ 18; Gov’t Exs. 4, 5, and 6 ¶ 19; Gov’t Exs. 7 and 8 ¶ 20.
Trump wanted to review his boxes before providing them to NARA, and employees (including
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Nauta) brought two to four at a time to his personal residence in Mar-a-Lago for him to review.
Gov’t Exs. 1, 2, and 3 ¶¶ 18-19; Gov’t Exs. 4, 5, and 6 ¶¶ 19-20; Gov’t Exs. 7 and 8 ¶¶ 20-21.
After the employees (including Nauta) brought about 15 to 17 boxes, Trump instructed them to
stop, and on January 17, 2022, employees handed over 15 boxes to NARA. Gov’t Exs. 1, 2, and
3 ¶¶ 21-24; Gov’t Exs. 4, 5, and 6 ¶¶ 22-25; Gov’t Exs. 7 and 8 ¶¶ 23-26. Trump indicated to his
staff that the 15 boxes were the only boxes that would be going to NARA and that there were no
more, and he instructed an employee to tell one of his lawyers there were no more boxes at Mara-Lago. Gov’t Exs. 1, 2, and 3 ¶¶ 23-25; Gov’t Exs. 4, 5, and 6 ¶¶ 24-26; Gov’t Exs. 7 and 8 ¶¶
25-27. But about 70 to 80 boxes remained in the storage room. Gov’t Exs. 1, 2, and 3 ¶ 26; Gov’t
Exs. 4, 5, and 6 ¶ 27; Gov’t Exs. 7 and 8 ¶ 28.
NARA reviewed the 15 boxes and found highly classified documents intermixed with other
records. Gov’t Exs. 1, 2, and 3 ¶ 6; Gov’t Exs. 4, 5, and 6 ¶ 7; Gov’t Exs. 7 and 8 ¶ 8. NARA’s
Office of the Inspector General sent a referral to the Department of Justice by email on February
9, 2022. Id. The FBI reviewed the 15 boxes and determined that 14 of the boxes contained a total
of over 100 documents with classification markings. Gov’t Exs. 1, 2, and 3 ¶ 27; Gov’t Exs. 4, 5,
and 6 ¶ 28; Gov’t Exs. 7 and 8 ¶ 29. On May 11, 2022, an attorney for Trump accepted service of
a grand jury subpoena for all documents with classification markings in the custody or control of
Trump and/or his office. Gov’t Exs. 1, 2, and 3 ¶¶ 8, 28; Gov’t Exs. 4, 5, and 6 ¶¶ 9, 29; Gov’t
Exs. 7 and 8 ¶ 10, 30. On June 2, 2022, the lawyer went to Mar-a-Lago to search through the
boxes in the storage room for responsive documents, and he collected documents from the boxes
and placed them in a folder. Gov’t Exs. 1, 2, and 3 ¶¶ 29, 36, 38; Gov’t Exs. 4, 5, and 6 ¶¶ 30, 37,
and 39; Gov’t Exs. 7 and 8 ¶ 31, 38, and 40. Prior to the attorney’s June 2 search for responsive
records in the storage room, between May 24 and June 1, 2022, Nauta moved approximately
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boxes out of the storage room, and on June 2, shortly before the attorney went to the storage room
to conduct his search, Nauta moved 25 to 30 boxes back into the storage room. Gov’t Exs. 1, 2,
and 3 ¶¶ 36-37; Gov’t Exs. 4, 5, and 6 ¶¶ 37-38; Gov’t Exs. 7 and 8 ¶ 38-39. On June 3, 2022,
when the attorney gave the folder with the responsive documents to FBI agents, containing over
three dozen documents with classification markings, the attorney also provided a certification
(signed by another attorney for Trump) stating that “[a] diligent search was conducted of the boxes
that were moved from the White House to Florida,” the search was conducted “in order to locate
any and all documents that are responsive to the subpoena,” and “[a]ny and all responsive
documents accompany this certification.” Gov’t Exs. 1, 2, and 3 ¶ 29; Gov’t Exs. 4, 5, and 6 ¶ 30;
Gov’t Exs. 7 and 8 ¶ 31.
Nauta twice provided false or misleading information to federal investigators about his
knowledge of the boxes. First, on May 26, 2022, Nauta gave a recorded, voluntary interview to
the FBI. Gov’t Exs. 1, 2, and 3 ¶ 39; Gov’t Exs. 4, 5, and 6 ¶ 40; Gov’t Exs. 7 and 8 ¶ 41. The
agents explained to Nauta that the FBI was investigating the storage of classified documents at
Mar-a-Lago and was particularly interested in where the boxes with classified documents (the boxes provided to NARA in January 2022) had been located and whether they had been moved
outside the storage room. Id. During the interview, Nauta—who had moved the boxes for weeks,
two or three boxes at a time, from the storage room to Trump’s residence for Trump to review—
falsely stated that he first saw the boxes in Pine Hall, the anteroom to Trump’s personal residential
suite at Mar-a-Lago, on the day the truck arrived to pick up the NARA boxes from Mar-a-Lago,
on January 17, 2022, and that he did not know where the boxes had come from prior to their being
in Pine Hall. Gov’t Exs. 1, 2, and 3 ¶ 40; Gov’t Exs. 4, 5, and 6 ¶ 41; Gov’t Exs. 7 and 8 ¶ 42.
Second, on June 21, 2022, Nauta testified before a federal grand jury in D.C. and concealed from
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the grand jury the large number of boxes he had removed from the storage room prior to June 2,
2022, when the attorney reviewed boxes in the storage room to comply with the grand jury
subpoena. Gov’t Exs. 1, 2, and 3 ¶ 42; Gov’t Exs. 4, 5, and 6 ¶ 43; Gov’t Exs. 7 and 8 ¶ 44. On
August 8, 2022, the FBI executed a warrant to search Mar-a-Lago. Gov’t Exs. 1, 2, and 3 ¶ 43;
Gov’t Exs. 4, 5, and 6 ¶ 44; Gov’t Exs. 7 and 8 ¶ 46. The agents found over 100 documents bearing
classification markings, in both the storage room and Trump’s office. Id.
The South Florida warrant affidavits further explained that Nauta had encrypted messaging
applications on both his personal and work cell phones and used both phones to communicate with
colleagues and Trump; that he used his Gmail account, which was associated with his personal
phone, as well as his work email to communicate with several colleagues; and that he was on an
email distribution list with Trump’s daily schedule. 4 Gov’t Exs. 1, 2, and 3 ¶¶ 47-51; Gov’t Ex. ¶¶ 48-51; Gov’t Exs. 5, 6 ¶¶ 48-52.
The D.C. warrant affidavits contained information obtained through execution of the South
Florida warrants on Nauta’s phones and additional evidence of Nauta’s involvement in obstruction.
Text messages from Nauta’s phone showed that on the evening of June 24, 2022, the same day
The Government has produced the search warrant materials to Nauta in discovery.
However, the full version of the work iCloud warrant application (Gov’t Ex. 6) was given to
Nauta’s counsel on March 1, 2024, after the Government noticed that this warrant was not
mentioned in Nauta’s motion, and after confirming with Nauta’s counsel that he did not possess a
full, unredacted copy of this warrant application. However, the property receipt associated with
this warrant was produced to Nauta earlier, and the filtered, scoped returns from this warrant were
also previously produced to Nauta. Moreover, in August 2023, Nauta’s counsel was informed in
a letter from a Government filter attorney that he was being provided with an unredacted, unscoped
copy of the production for this iCloud account. Finally, a redacted version of this warrant affidavit
has been publicly available since August 2023. See 22-mj-8550, ECF No. 14 (Aug. 28, 2023). The
iCloud warrant application was identical to the other South Florida warrants for purposes of the
issues raised in this motion, and, as explained below, there is no basis to suppress evidence from
any of the warrants.
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that the Department of Justice had sent counsel for the Trump Organization a subpoena for Mara-Lago CCTV security footage and three days after Nauta had testified in the grand jury, Nauta
had begun coordinating a secret trip to Mar-a-Lago for the next day (June 25). Gov’t Exs. 7 and
8 ¶ 45. Nauta falsely told several people that he was going to Florida because he had a family
emergency.
Id.
Instead, Nauta communicated with the Mar-a-Lago property manager,
codefendant Carlos De Oliveira, and flew from New Jersey to Palm Beach, where—as shown on
the subsequently obtained security footage and corroborated by text messages—Nauta and De
Oliveira met at Mar-a-Lago the evening of June 25, 2022. Id. There, the two walked in the
basement tunnels and entered the storage room area. Nauta appeared to be holding a cell phone in
his hand, and De Oliveira gestured in the direction of CCTV cameras in the vicinity of the storage
room. Id.
The D.C. warrant affidavits further explained that location information connected to
Nauta’s Google account and from his cell phone service provider would aid in the investigation
by pinpointing where Nauta was at key points relevant to the case, including his whereabouts when
he rendezvoused at Mar-a-Lago with De Oliveira the weekend of June 25 after Trump received
the subpoena for CCTV footage that would show Nauta and De Oliveira moving boxes. Gov’t
Exs. 7 and 8 ¶¶ 55-56.
II.
Argument
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend IV. Nauta contends that (1) the warrant
affidavits failed to establish probable cause for the searches authorized by the warrants, Mot. at 918; (2) the affidavits contained intentionally or recklessly false statements or misleading omissions
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that were necessary to establishing probable cause, Mot. at 19-22; (3) the warrants failed to state
the places to be searched and items to be seized with sufficient particularity, Mot. at 16-18; (4)
agents went beyond the scope of the searches authorized by the warrants when executing the
warrants, Mot. at 18-19; and (5) certain vaguely described due-process violations require
suppression of the fruits of the warrants, Mot. at 22-23. These arguments are without merit.
A.
Probable Cause
The affidavits submitted in support of the warrants to search Nauta’s electronic devices
and associated electronic records amply established probable cause for those searches. But even
if the warrants fell short in establishing probable cause, which they did not, the good-faith
exception to the exclusionary rule would foreclose suppression of the evidence obtained through
execution of the warrants.
1.
The Affidavits Established Probable Cause for All the Listed Offenses
“Probable cause exists ‘if facts within the magistrate’s knowledge and of which he had
reasonably trustworthy information would warrant a man of reasonable caution in the belief that a
crime was committed and that evidence is at the place to be searched.’” United States v.
Betancourt, 734 F.2d 750, 754 (11th Cir. 1984) (quoting United States v. Strauss, 678 F.2d 886,
892 (11th Cir. 1982)). “The issuing magistrate is to make a ‘practical, common-sense decision’
about whether the ‘totality of the circumstances’ indicate that there is probable cause that the
sought-for evidence will be obtained.” United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990)
(quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). “A magistrate’s decision that probable
cause exists is conclusive absent arbitrariness.” Betancourt, 734 F.2d at 754. “[A]fter-the-fact
scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A
magistrate’s determination of probable cause should be paid great deference by reviewing courts.”
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Gates, 462 U.S. at 236 (quotation marks omitted). The affidavits here established probable cause
to conclude that evidence of each of the crimes listed in the warrants would be found in Nauta’s
electronic devices and associated electronic records. a.
18 U.S.C. § 793(e) and 18 U.S.C. §
The affidavits provided ample basis to conclude that evidence of unlawful retention of
national defense information, in violation of 18 U.S.C. § 793(e), and evidence of efforts to impede
or obstruct a federal criminal investigation, in violation of 18 U.S.C. § 1519, would be found in
Nauta’s electronic devices and associated electronic records. Those affidavits described the large
volume of documents with classified markings found at Mar-a-Lago; Trump’s familiarity with the
boxes; his requests to have them brought to the hall outside his residence for his review; and his
efforts to retain the boxes by (a) falsely claiming that all of the boxes with presidential records had
been given to NARA, and (b) misleading his attorney through Nauta’s surreptitious box movement
in the days prior to the attorney’s review in the storage room. The affidavits also depict Nauta’s
central role in the obstruction: the FBI informed Nauta during an interview on May 26, 2022, that
there was an investigation of classified documents at Mar-a-Lago with a particular focus on the
storage room and other locations where classified documents might be located. Gov’t Exs. 1, 2,
and 3 ¶ 39; Gov’t Exs. 4, 5, and 6 ¶ 40; Gov’t Exs. 7 and 8 ¶ 41. Within six days of that interview,
Nauta went to the storage room and removed approximately 60 boxes, and accompanied Trump’s
attorney to the storage room on June 2 knowing that the attorney was there to review boxes, and
Contrary to Nauta’s assertion (Mot. at 3-4), the fact that the Superseding Indictment does
not include charges of violating 18 U.S.C. § 2071 or 18 U.S.C. § 1623 does not mean that probable
cause was lacking for those offenses. See, e.g., United States v. Vann, 336 F. App’x 944, 946 (11th
Cir. 2009) (affirming denial of suppression where the defendant “was not indicted for the
controlled buys conducted on April 21, 2007 and described in the officers’ search warrant
affidavit”). That is particularly true where, as here, his grand jury testimony occurred in a different
district from where he was indicted.
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knowing that he (Nauta) had removed at least thirty more boxes from the storage room than he had
subsequently put in. Gov’t Exs. 1, 2, and 3 ¶ 36; Gov’t Exs. 4, 5, and 6 ¶ 37; Gov’t Exs. 7 and ¶ 38. The D.C. affidavits included additional evidence supporting probable cause, including
evidence of Nauta’s clandestine trip to Mar-a-Lago on the heels of Trump receiving a subpoena
for CCTV footage at Mar-a-Lago that would reveal Nauta’s surreptitious box movement. Gov’t
Exs. 7 and 8 ¶ 45.
Nauta’s claim that the affidavits “failed to show that national defense information was
involved” is wrong. Mot. at 12. The affidavits noted that scores of documents with classification
markings were stored at Mar-a-Lago, including documents at the highest classification levels with
limited distribution. See Gov’t Exs. 1, 2, and 3 ¶ 6; Gov’t Exs. 4, 5, and 6 ¶ 7; Gov’t Exs. 7 and ¶ 8.
As the affidavits explained, based on the affiant’s training and experience in the
counterintelligence division, documents with those classification markings would be expected to
contain national defense information. See Gov’t Exs. 1, 2, and 3 ¶¶ 2, 43; Gov’t Exs. 4, 5, and ¶¶ 2, 44; Gov’t Exs. 7 and 8 ¶¶ 2, 46. See United States v. Robinson, 62 F.3d 1325, 1331 n.9 (11th
Cir. 1995) (“[O]pinions and conclusions of an experienced agent regarding a set of facts are
properly a factor in the probable cause equation for issuing a search warrant.”) (quotation marks
omitted). Those allegations were more than adequate to provide probable cause that documents
with national defense information were stored at Mar-a-Lago.
Nauta’s contention that the warrant needed to include evidence that Nauta himself violated
Section 793, or any other offense listed in the warrant for that matter, is contrary to well-established
law. “The critical element in a reasonable search is not that the owner of the property is suspected
of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for
and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily,
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U.S. 547, 556 (1978); see also Haire v. Thomas, 219 F. App’x 844, 846 (11th Cir. 2006) (“To
issue the warrant the magistrate judge had to determine only that there was a ‘fair probability’ that
Haire has evidence in his home relating to the underlying fraud. The evidence did not necessarily
have to implicate Haire in the crime.”). Therefore, for purposes of probable cause for the warrant,
the affidavits only needed to establish that there was probable cause that evidence of the stated
crimes, whether committed by Trump or Nauta, could be found in the property to be searched, i.e.,
Nauta’s phones and electronic accounts. The affidavits amply made that showing.
b.
18 U.S.C. § 1001 and 18 U.S.C. §
During his FBI interview, Nauta falsely claimed that he was not aware where Trump had
stored boxes at Mar-a-Lago other than Pine Hall, the anteroom to Trump’s residential suite at Mara-Lago, and that he had not seen such boxes prior to the day Nauta assisted in moving the boxes
from Pine Hall to the NARA truck in January 2022, despite Nauta having moved boxes from the
storage room to Pine Hall for Trump’s review over the course of several weeks before NARA’s
pick-up. And when asked in the grand jury about his previous false statement, Nauta denied that
it was false. Such false statements and concealment were material given that the investigation was
attempting to determine where classified documents had been located after the end of the
presidency, and in which rooms they remained at Mar-a-Lago after January 2022.
Further, the magistrate judge could consider the evasive and misleading nature of Nauta’s
answers in assessing probable cause, such as the fact that when asked in the grand jury about when
he had removed boxes from the storage room, Nauta testified that “recently”—by which, in
context, he meant “within the last month” prior to his June 21 testimony—he had removed a box
of challenge coins from the storage room, never mentioning the scores of boxes he had removed
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from the storage room in the few days prior to Trump’s attorney’s review of them on June 2. See
Gates, 462 U.S. at 238-39 (viewing probable cause based on the “totality of circumstances”).
Nauta’s implausible argument that he did not know whether the 15 boxes in Pine Hall were
the “same” boxes he had brought from the storage room before the NARA pick-up in January does not lead to the conclusion that the warrant lacked probable cause for his false statements or
perjury. A defendant does not escape perjury “simply because the defendant can postulate unstated
premises of the question that would make his answer literally true.” United States v. Hernandez,
921 F.2d 1569, 1574-75 (11th Cir. 1991) (quotation marks omitted).
Finally, Nauta’s claim (Mot. at 10) that the affidavit provides no corroboration of a
witness’s information about Trump’s boxes is untrue. Nauta’s own statements, see Gov’t Exs. 1,
2, and 3 ¶¶ 21-23; Gov’t Exs. 4, 5, and 6 ¶¶ 22-24; Gov’t Exs. 7 and 8 ¶¶ 23-25, as well as a photo
of the storage room that the witness provided, see Gov’t Exs. 1, 2, and 3 ¶ 20; Gov’t Exs. 4, 5, and
6 ¶ 21; Gov’t Exs. 7 and 8 ¶ 22, support the reliability of the witness’s first-hand account of Nauta’s
and Trump’s actions regarding the boxes.
Even if such corroboration were not provided,
“independent police corroboration has never been treated as a requirement” in every case for
probable cause in a search warrant. United States v. Brundidge, 170 F.3d 1350, 1353 (11th Cir.
1999).
c.
18 U.S.C. §
Under 18 U.S.C. § 2071, “[w]hoever willfully and unlawfully conceals, removes,
mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries
away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with
any clerk or officer of any court of the United States, or in any public office, or with any judicial
or public officer of the United States,” commits a federal criminal offense. 18 U.S.C. § 2071(a)
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(emphasis added). The allegations in the affidavits amply established that Trump, aided by Nauta,
concealed and removed sensitive government documents and presidential records that had been
filed or deposited in a public office.
Without citing to any case or authority, Nauta claims that the statute “only applies to record
custodians at the officer level” and suggests that it would be “unconstitutional” to apply the law to
a former President. Mot. at 4-5. A possible defense, including a claim that the “statute is
unconstitutional,” does not undermine probable cause that a statute was violated, Manners v.
Cannella, 891 F.3d 959, 972 (11th Cir. 2018), but in any event, Nauta’s arguments about 18 U.S.C.
§ 2071 are mistaken. As a district court concluded in a case charging the former National Security
Advisor and a member of the National Security Council (“NSC”) in a conspiracy to violate U.S.C. § 2071 by altering sensitive NSC documents:
There is no warrant for supposing, and no legislative history suggesting, that
Congress meant to subject to punishment under section 2071 only those who are
the custodians of records in the technical sense, such as clerks or librarians, but to
permit others working in a government agency who have access to sensitive
documents to destroy or alter them with impunity. The obvious purpose of the
statute is to prohibit the impairment of sensitive government documents by those
officials who have access to and control over them, and no court has ever held to
the contrary.
United States v. Poindexter, 725 F. Supp. 13, 20 (D.D.C. Oct. 24, 1989); see also Coplon v. United
States, 191 F.2d 749 (D.C. Cir. 1951) (upholding 18 U.S.C. § 793 and 18 U.S.C. § convictions of a Department of Justice employee who had concealed and removed highly secret
FBI reports located in Department of Justice offices not accessible to the public). Moreover, in
“reject[ing] defendant’s argument that application of section 2071 to NSC documents would
intrude upon the constitutionally-based doctrine of executive privilege,” the court in Pointdexter
determined that the “statute, of course, applies only to the unlawful destruction or removal of
official records, and as such it does not impact the functioning of the Presidency.” 725 F. Supp.
13Page 16 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 16 of
20 n.7 (emphasis omitted); see also id. at 20 n.8 (noting that the purpose of the Presidential Records
Act of 1978 was “to establish public ownership of records created by future Presidents and their
staff in the course of discharging their official duties”). Nauta’s legal challenges do not undermine
probable cause in the affidavits.
2.
The Good-Faith Exception Forecloses Suppression
Even if the warrant affidavits failed to establish probable cause, which they did not, the
good-faith exception to the exclusionary rule would foreclose suppression. See United States v.
Leon, 468 U.S. 897, 922 (1984). When a defendant seeks suppression based on a claim that the
warrant affidavit failed to establish probable cause, suppression is warranted only if the “warrant
is based on an affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” United States v. McCall, 84 F.4th 1317, 1325 (11th Cir. 2023)
(quotation marks omitted). “To exclude evidence on this ground, the affidavit must be so clearly
insufficient that it provided no hint as to why police believed they would find incriminating
evidence.” Id. (quotation marks omitted). The “officer’s judgment must be more than just
mistaken—it must be so plainly incompetent that no officer of reasonable competence would have
requested the warrant.” Id. Those circumstances are not remotely present here.
B.
There Were No Materially Misleading Omissions in the Affidavits
“There is . . . a presumption of validity with respect to the affidavit supporting the search
warrant,” Franks v. Delaware, 438 U.S. 154, 171 (1978), but a defendant may, in “limited”
circumstances, id. at 167, attack the validity of a warrant affidavit if the defendant (1) after a
hearing, demonstrates by a preponderance of the evidence that the affiant made intentionally false
or recklessly misleading statements, and (2) “with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause,” id. at 156. To obtain a
14Page 17 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 17 of
hearing to try to substantiate claims of intentional or reckless falsity in a warrant affidavit, the
defendant must make a “substantial preliminary showing.” Id. at 155, 170. The allegations of
deliberate falsehood or reckless disregard for the truth must be “more than conclusory” and should
be “accompanied by an offer of proof” and “a statement of supporting reasons.” Id. at 171.
“Allegations of negligence or innocent mistake are insufficient.”
Id.
And even “if these
requirements are met,” a hearing is still not warranted “if, when material that is the subject of the
alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant
affidavit to support a finding of probable cause.” Id. at 171-72.
In addition to affirmative false statements, Franks may also apply to omissions, but only
if they are intentionally or recklessly misleading and also material to a finding of probable cause.
“An affiant cannot be expected to include in an affidavit every piece of information gathered in
the course of an investigation,” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990), and
scrutinizing an affidavit for “omission[s] potentially opens officers to endless conjecture about
investigative leads, fragments of information, or other matter that might, if included, have
redounded to defendant’s benefit,” United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001)
(quotation marks omitted). Accordingly, a defendant must make a substantial preliminary showing
that an omission was deliberately or recklessly misleading, not “made negligently or because of
an innocent mistake.” United States v. Whyte, 928 F.3d 1317, 1333 (11th Cir. 2019). And the
omission must be material, which means that “inclusion of the omitted facts would have prevented
a finding of probable cause.” United States v. Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009)
(quotation marks omitted); see United States v. Maxi, 886 F.3d 1318, 1331–32 (11th Cir. 2018).
Nauta makes several baseless allegations of omission that are either flatly untrue, turn out
not to be omitted from the affidavits, or do not detract from or have relevance to probable cause.
15Page 18 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 18 of
1. Nauta claims that the D.C. search warrant affidavits “omitted that multiple prior
warrant executions as to Nauta yielded no inculpatory evidence as to any purported crimes.” Mot.
at 11, 12. But the evidence contradicts this erroneous claim: the South Florida warrants did, in
fact, yield inculpatory evidence, and that evidence was included in the affidavits submitted in
support of the D.C. warrants. See Gov’t Exs. 7 and 8 ¶¶ 13 and 45. Specifically, a day after the
Department of Justice sent a subpoena to a Trump representative on June 24, 2022, for CCTV
footage at Mar-a-Lago, Nauta made a secret trip to Mar-a-Lago after falsely telling several people
that he was going to Florida for family reasons. At Mar-a-Lago, Nauta met with codefendant
Carlos De Oliveira, and together they toured the basement area of Mar-a-Lago, where De Oliveira
gestured in the direction of the CCTV cameras near the storage room. More evidence will be
presented at trial, but at a minimum, there was a reasonable basis to believe that additional
obstruction had occurred.
2. Contrary to Nauta’s assertions (Mot. at 7, 21), the affidavits accurately described
the context of Nauta’s FBI interview and grand jury appearance. Nauta was interviewed by the
FBI on May 26, 2022, in the presence of his attorney (a prior attorney, not his current attorney) at
an FBI office, where he was warned by the agents about the federal crime of making false
statements, in violation of 18 U.S.C. § 1001, and told that the FBI was investigating classified
documents that had been improperly located at Mar-a-Lago. In no sense was this, as described by
Nauta, an “informal conversation.” Mot. at 7, 21. And the transcript of the interview, included as
an exhibit to Nauta’s motion, shows that the FBI asked Nauta multiple questions about the boxes provided to NARA, where those boxes had been stored at Mar-a-Lago, who moved them to
the vestibule of the former President’s residence, and whether any other boxes were stored at Mar-
16Page 19 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 19 of
a-Lago, and Nauta repeatedly dissembled. 6 And Nauta’s later attempts to try to explain away some
of these statements before the grand jury were equally implausible. 3. Nauta claims that the FBI special agent who swore to Nauta’s South Florida
warrants made a false statement in an unrelated complaint affidavit in an unrelated case against a
January 6 Capitol rioter and that this should have been disclosed to an “issuing magistrate.” Mot.
at 6 n.3. The complaint affidavit in the January 6 case stated that “at least one federal police officer
died as a result of the injuries he sustained.” United States v. Allan, 21-cr-64, ECF No. 1 ¶ (D.D.C. Jan. 20, 2021). Months after this affidavit, a medical examiner determined that the officer
had died of natural causes from strokes occurring hours after the officer’s confrontation with the
See, e.g., Gov’t Ex. 9 at 30 (Question: “Is there any other place [other than the vestibule
of the former President’s residence] that the President could have kept boxes?” Answer: “Not—
not to my knowledge.”); id. at 31-32 (Question: “Okay, but as far as you know, no rooms have
held or did hold, like, boxes similar to what you brought, brought onto the truck [to NARA].”
Answer: “As far as I know, no.”); id. at 34 (“If we wanted to find out, hey are there like, were
these boxes stored somewhere, like who would be the person to—to ask about?” Answer: “I
wouldn’t know.”); id. at 47 (Question: “We were talking about a year, so can—can you guess
where they [the 15 boxes] could have been or where they could have come from?” Answer: “I
don’t want to guess. I just, I just, my answer is I don’t know.”); id. at 49 (Question: “But even
within Mar-a-Lago . . . is there a place where boxes could be stored?” Answer: “There’s many
storage units that I haven’t, you know, I assume that I haven’t even, that could be places that aren’t
even storage units that I . . . You know? There’s a lot of doors on Mar-a-Lago.”); id. at (Question: “So, you . . . had no idea how they [the 15 boxes] got there [in the vestibule of the
former President’s residence] before?” Answer: “No.”).
See Ex. 10 at 56-57 (Question: “Did you tell the FBI that the first time you had ever seen
any of the boxes was when you moved them from Pine Hall to the moving truck?” Answer: “Yes.”
Question: “But it’s your testimony before the grand jury today that in fact, you moved boxes up
from the basement to Pine Hall, right?” Answer: “Weeks prior, yes.” Answer: “So sir, I have to
ask; why would you have told the FBI that the first time you saw them was much later, when in
fact, you saw them weeks prior?” Answer: “They had asked me if I had saw those boxes in Pine
Hall. That’s what I understood what they were asking at the time.” Question: “And when you told
the FBI that you didn't know where the boxes in Pine Hall came from, that actually turns out not
to be true, right?” Answer: “Well, I mean, that could have been the boxes that I brought up, or they
could have been boxes from wherever they were inside his room.” Question: “But to your
knowledge, you’ve been the only one who’s taken boxes from the storage room in the basement
to Pine Hall in the residence, right?” Answer: “To my knowledge and from what I understand, the
boxes that I moved, yes.”).
17Page 20 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 20 of
mob, but the examiner concluded that “all that transpired played a role in his condition.” 8 Nauta
provides no evidence to suggest the statement in the January 6 complaint affidavit was
intentionally deceptive, much less that its omission from the affidavits in this case had an impact
on probable cause.
4. Nauta contends that the affidavits “hid the partisan political influence brought to
bear on NARA.” Mot. at 19. As the Government has explained in opposing the defendants’
motion to compel discovery (ECF No. 277) and Trump’s motion to dismiss the indictment or
suppress evidence on due-process grounds (filed by email today), there is no evidence to support
their conspiratorial claims that purported bias at NARA affected this criminal investigation. And
for purpose of this motion to suppress, Nauta fails to show that the affiants knew of or recklessly
omitted these unsupported claims from the affidavits, let alone explain how his fictive allegations
of bias would detract from probable cause shown here. See United States v. Taylor, No. 14-CR0303, 2015 WL 5923580, at *2 (S.D. Ala. Oct. 12, 2015) (“[T]he Eleventh Circuit and other courts
have cast a dim view on the argument that omission of details about [an informant]’s criminal
history and potential biases triggers a Franks remedy.”).
5. Nauta falsely claims (Mot. at 20) that the affidavits omitted the fact that the
subpoena was addressed to the Office of former President Trump. But in fact, the affidavit
expressly stated: “on May 11, 2022, the Department of Justice (‘DOJ’) served a grand jury
subpoena on counsel for the Office of the Former President (the ‘Office’) seeking ‘any and all
documents . . . bearing classification markings’ in FPOTUS’s and/or the Office’s possession.”
Gov’t Exs. 1, 2, and 3 ¶ 8; Gov’t Exs. 4, 5, and 6 ¶ 9; Gov’t Exs. 7 and 8 ¶ 10.
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6.
Nauta alleges that the Government “hid” an “apparent refusal to interview President
Trump.” Mot. at 21. Nauta offers no support for his claim, but in any event, there is no reason to
believe that the non-interview of one subject of an investigation ahead of a court-authorized search
of another subject’s devices and accounts would have any bearing on the probable cause contained
in the affidavits.
7.
Nauta claims that the D.C. affidavits “failed to acknowledge that [the Mar-a-Lago
IT Director] had unequivocally denied any impropriety in Nauta’s June 2022 trip to Mar-a-Lago.”
Mot. at 21. But the first time the Government questioned the IT Director about Nauta’s 2022 trip
was during the IT Director’s March 2023 grand jury testimony, one month after the last Nauta
warrant was issued. 9 Accordingly, the Court need not look further regarding this claim. 8.
Nauta also suggests (Mot. at 9) that the affidavits should have mentioned that a
Trump Organization attorney had requested that the Trump Organization’s Director of Security
preserve the CCTV footage after receiving the subpoena for the footage. But any such request by
an uncharged Trump Organization attorney does not undermine probable cause to believe that
Nauta and his coconspirators had engaged in separate bad-faith attempts to delete the footage
immediately after the subpoena was received.
The FBI interviewed the IT Director in late January 2023, but the interviewing agent at
that point was not aware of text messages between Nauta and the IT Director and therefore no
questions were asked about Nauta’s June 2022 trip.
In grand jury testimony after the Nauta warrants, the IT Director denied knowing about
the nature of Nauta’s June 2022 trip, but his denials were suspect and turned out to be false. As
the Court is aware from prior litigation, the IT Director (referred to in the Superseding Indictment
as “Trump Employee 4”) provided false denials in testimony before the grand jury at a time when
he was represented by Nauta’s counsel, whose legal fees were paid by Trump’s political action
committee. Trump Employee 4 provided to the Government the facts set forth in the Superseding
Indictment immediately after switching to new, conflict-free counsel. See, e.g., ECF No. 129 at
2-5.
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9.
In a single sentence without elaboration or explanation, Nauta also claims that the
affidavit “hid information” about purported political bias on the part of counsel for a witness in
the investigation. Mot. at 21. He offers no support for the notion that any such information, even
if true, should be included in a search warrant affidavit, much less that its omission would
undermine probable cause.
10.
Nauta’s “adopt[ion]” of the arguments in Trump’s motion to suppress is also
unavailing. Mot. at 22. None of the arguments in Trump’s motion has merit, as addressed in the
Government’s response to Trump’s motion, and Nauta does not explain how any of Trump’s
arguments undermine probable cause in the warrants to search Nauta’s phones and electronic
accounts.
C.
Particularity and Overbreadth
A warrant “need only describe the place to be searched with sufficient particularity to direct
the searcher, to confine his examination to the place described, and to advise those being searched
of his authority.” United States v. Weinstein, 762 F.2d 1522, 1532 (11th Cir. 1985) (quotation
marks omitted). And a warrant describes the things to be seized with sufficient particularity “when
it enables the searcher to reasonably ascertain and identify the things authorized to be seized.”
Betancourt, 734 F.2d at 754-55. Neither “elaborate specificity” nor “technical perfection” is
necessary. United States v. Bradley, 644 F.3d 1213, 1259 (11th Cir. 2011) (quotation marks
omitted). “It is universally recognized that the particularity requirement must be applied with a
practical margin of flexibility, depending on the type of property to be seized” and the nature of
the investigation. United States v. Wuagneux, 683 F.2d 1343, 1348-49 (11th Cir. 1982). “Cloud
or data-based warrants with a sufficiently tailored time-based limitation can undermine any claim
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that they are the ‘internet-era version of a ‘general warrant.’” United States v. McCall, 84 F.4th
1317, 1328 (11th Cir. 2023) (quoting United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017)).
The warrants identified the items to be seized as documents and records that reflected
violations of 18 U.S.C. § 793, § 2071, § 1519, § 1001, and § 1623, and involving Nauta and any
coconspirator, since January 2021 (for the South Florida warrants) and since November 2021 (for
the D.C. location warrants). The South Florida warrants that involved contents of electronic
communications (Gov’t Exs. 1, 4, 5, and 6) further specified in Attachment B the information to
be seized as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Communications, records, documents, and other files regarding the access
to or movement or location of any boxes or records;
Information, including communications in any form, regarding the retrieval,
storage, or transmission of national defense information or classified
material;
Information, including communications in any form, regarding any
government and/or Presidential records created between January 20, 2017,
and January 20, 2021;
Any evidence of the knowing alteration, destruction, or concealment of any
government and/or Presidential records, or of any documents with
classification markings;
Communications, records, documents, and other files regarding the source
and nature of any monetary transactions;
Evidence indicating how and when the [TARGET PHONES or account]
were accessed or used to determine the context of phone access, use, and
events relating to the crimes under investigation and to the phone user;
Evidence establishing the motive, capability, or willingness to commit the
above referenced crimes, including but not limited to evidence indicating
the phone user’s state of mind as it relates to the crimes under investigation;
The identity of the person(s) who communicated with the account user
about matters relating to violations of the above-referenced crimes,
including records that help reveal their whereabouts.
This detailed description, combined with the warrants’ temporal limitations, provided
ample direction to searchers and readily satisfied the Fourth Amendment’s particularity
requirements. See McCall, 84 F.4th at 1328. But even assuming these descriptions fell short,
which they did not, the good faith exception to the exclusionary rule forecloses suppression.
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Insufficient particularity in a warrant can lead to suppression only when the warrant is “so facially
deficient,” i.e., so lacking in particularity, that “the executing officers cannot reasonably presume
it to be valid.” Leon, 468 U.S. at 923; see Blake, 868 F.3d at 975 (warrant lacked particularity but
good-faith exception foreclosed suppression). Nothing like that happened here. Whatever Nauta’s
criticisms of the warrant’s particularity or overbreadth, it was “objectively reasonable” for agents
to rely on the warrant. United States v. Travers, 233 F.3d 1329, 1329 (11th Cir. 2000) (quotation
marks omitted). The warrant affidavits here are certainly “not so facially deficient . . . that the
executing officers could not have reasonably presumed [them] to be valid.” Id. at 1330 (quotation
marks omitted).
D.
Execution of the Search Warrants Was Reasonable
Nauta suggests (Mot. at 18-19) that the execution of the search of digital evidence took too
long and was impermissibly broad in scope, but he proffers nothing to substantiate his allegation,
much less demonstrate the “flagrant disregard” of the terms of the warrant required to prevail on
such a claim. See Wuagneux, 683 F.2d at 1354. Nauta points to no part of the filtered, scoped
production given to him that exceeds the scope of the warrant, and even if he had, that alone would
be insufficient to mandate suppression. Id. (“[A]bsent a flagrant disregard of the terms of the
warrant, the seizure of items outside the scope of a warrant will not affect admissibility of items
properly seized.”) (quotation marks omitted); United States v. Maali, 346 F. Supp. 2d 1226, (M.D. Fla. 2004) (“[A]ny finding of flagrant disregard in this case must be founded upon
something other than the sheer volume of documents seized or the fact that some items outside the
scope of the warrants were taken.”).
The South Florida warrants were executed in November 2022, and the review of the digital
evidence was accomplished within six months. And considering the time it took to receive the
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returns from the providers, filter the returns for attorney-client privilege, and review the substantial
amount of data contained (there were over 200,000 Nauta communications), there was nothing
unreasonable about the time the search took. Indeed, document reviews of a much longer duration
have been found to be reasonable. See, e.g., United States v. Jarman, 847 F.3d 259, 266-67 (5th
Cir. 2017) (review lasting 23 months was not unreasonable); United States v. Lee, No. 1:14-cr227-TCB-2, 2015 WL 5667102, at *4 (N.D. Ga. Sept. 25, 2015) (review lasting more than three
years did not signify unreasonableness).
E.
No Due Process Violations
Nauta alleges a mix of what he claims are “due process violations.” Mot. at 2. He does
not cite any legal authority, let alone explain why these purported violations should entitle him to
legal relief. Regardless, Nauta’s claims are factually unfounded.
1. Nauta contends that the grand jury “was improperly invoked and exceeded
jurisdiction.” Mot. at 22. But there was nothing improper about the initiation of the grand jury in
the District of Columbia, as explained more fully in the Government’s response to Trump’s
motions to dismiss based on prosecutorial misconduct and due process violations (filed by email
today). In short, when the Government started the grand jury investigation in the District of
Columbia, it could not know the full scope of the evidence that would be gathered, but from the
outset, the investigation encompassed conduct that spanned the District of Columbia and the
Southern District of Florida, and the investigation uncovered evidence of federal offenses in both
districts. And although the Government ultimately decided to bring charges in Florida, there was
nothing inappropriate about that: the Government’s charging decisions must be reached “at the
conclusion of the grand jury’s labors, not at the beginning,” Blair v. United States, 250 U.S. 273,
23Page 26 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 26 of
282 (1919), and “hindsight is not the proper perspective for discerning the limits of a grand jury’s
investigative power,” United States v. Paxson, 861 F.2d 730, 733 (D.C. Cir. 1988).
2. Nauta wrongly alleges (Mot. at 22) that there were attorney-client communications
used to obtain the Nauta search warrants. In fact, no search warrant affidavit in this case relied on
any attorney-client privileged communication, and Nauta fails to cite to any portion of any Nauta
affidavit to support or clarify his allegation. As explained further below, a filter process was used
so that the case team never received any potentially privileged Nauta communications.
Nor does Nauta’s reference to Trump’s motion regarding crime-fraud communications
help his suppression motion. The last Nauta search warrant was obtained in February 2023, more
than one month before the Chief Judge in the District of Columbia issued the order regarding the
crime-fraud exception as to Trump’s attorneys and ordering the disclosure of evidence to the
Government.
It was thus impossible for the Government to have used any of Trump’s
communications with his attorneys in Nauta’s warrant affidavits.
3. As described above, Nauta’s South Florida warrant affidavits all contained a filter
protocol to address potential attorney-client privileged communications contained in the search
warrant returns. 11 The filter process, which was conducted by a different filter team than the one
that was in place for the execution of the search at Mar-a-Lago, was appropriate here for the search
of a non-attorney’s electronic accounts for potentially privileged material. Where records “are
already in the government’s possession as the result of the execution of a search warrant . . . the
use of a filter team to review them is respectful of, rather than injurious to, the protection of
privilege.” In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable
As mentioned, the location warrants for Google and Verizon did not include a filter
protocol because the Government was seeking only location data, not content evidence.
24Page 27 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 27 of
Elec. Means, 11 F.4th 1235, 1250 (11th Cir. 2021) (quotation marks omitted); see id. at 1250 n.(noting that its conclusion about the sufficiency of the protocol in the case was specific to the
circumstances involving an attorney’s office and that the court was not “prejudge[ing] other filter
protocols”).
In his request for a sprawling hearing (Mot. at 23-24), Nauta lobs various attacks on the
filter protocol, but he provides nothing to substantiate them. 12 To the contrary, by all indications,
the filter protocol functioned as intended: Nauta has received all of the evidence that made it to
the case team through the filter protocol (and the filter team also provided Nauta all the unfiltered
evidence from the warrants), and he has not claimed that the case team received any privileged
communications. Nauta’s vague assertions, without reference to any legal authorities, are not
sufficient to raise a suppression claim. See United States v. Richardson, 764 F.2d 1514, 1527 (11th
Cir. 1985) (“A motion to suppress must in every critical respect be sufficiently definite, specific,
detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.”).
III.
Conclusion
For the foregoing reasons, Nauta’s motion should be denied in its entirety, and no
evidentiary hearing is required to address the issues he raises.
Nauta claims, for example, that “the same U.S. Attorney’s office [was used] as the filter
team,” Mot. at 23-24, but his claim is wrong. And in any event, there is no requirement that a
participant in an established filter process be assigned from a separate U.S. Attorney’s Office.
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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, NW
Washington, D.C. David V. Harbach, II
Assistant Special Counsel
Special Bar ID #AMichael E. Thakur
Assistant Special Counsel
Florida Bar No.
March 7,
26Page 29 Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 29 of
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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PlainSite Cover Page
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Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 1 of 29
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 WALTINE NAUTA’S
MOTION TO SUPPRESS EVIDENCE
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Case 9:23-cr-80101-AMC Document 381 Entered on FLSD Docket 03/07/2024 Page 2 of 29
TABLE OF CONTENTS
I.
Factual Background ............................................................................................................ 1
A.
The Nauta Warrants ...................................................................................................... 1
B.
The Warrant Affidavits ................................................................................................. 3
II.
Argument ............................................................................................................................ 7
A.
III.
Probable Cause.............................................................................................................. 8
1.
The Affidavits Established Probable Cause for All the Listed Offenses ................ 8
2.
The Good-Faith Exception Forecloses Suppression ............................................. 14
B.
There Were No Materially Misleading Omissions in the Affidavits .......................... 14
C.
Particularity and Overbreadth ..................................................................................... 20
D.
Execution of the Search Warrants Was Reasonable ................................................... 22
E.
No Due Process Violations ......................................................................................... 23
Conclusion ........................................................................................................................ 25
i
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Defendant Waltine Nauta moves to suppress evidence obtained through the execution of
court-authorized warrants to search his cell phones and electronic accounts. Waltine Nauta’s
Motion to Suppress Evidence (“Mot.”). 1 Nauta identifies no material omissions or deficiencies in
the warrants or the manner in which they were carried out that would remotely support a hearing
or suppressing the evidence obtained through those warrants. To the contrary, the warrants were
supported by probable cause and were executed appropriately. The findings of probable cause by
the Chief Judge in the District of Columbia and the magistrate judge in this district were correct.
In any event, those findings are entitled to deference and were relied on in good faith by the agents
who executed the warrants. The suppression motion should be denied.
I.
Factual Background
A.
The Nauta Warrants
In October and November 2022, Magistrate Judge Bruce E. Reinhart issued warrants to
search (1) Nauta’s two Apple iPhone cell phones (Gov’t Ex. 1); (2) Nauta’s car in Florida for the
limited purpose of seizing Nauta’s two iPhones (Gov’t Ex. 2); (3) Nauta’s West Palm Beach
apartment for the limited purpose of seizing Nauta’s two iPhones (Gov’t Ex. 3); (4) Nauta’s work
email account (Gov’t Ex. 4); (5) Nauta’s personal iCloud account, which was linked to both his
iPhones (Gov’t Ex. 5); and (6) Nauta’s work iCloud account linked to his work phone (Gov’t Ex.
6). 2 The same FBI special agent provided affidavits in support of each of these warrants (the
“South Florida warrants”).
1
Nauta’s motion has not yet been docketed publicly or received an ECF number. This
response does not require redactions and therefore the Government files it on the public docket,
but pursuant to the Court’s order (ECF Nos. 320, 365), the Government will seek redactions to the
ten Government exhibits cited in this response and will submit those exhibits to the Court by email.
2
Because the FBI seized Nauta’s two cell phones outside his residence based on warrant
(1), warrants (2) and (3) were not executed and, accordingly, there is no evidence to suppress from
those two warrants.
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On February 6, 2023, Chief Judge Beryl Howell in the District of Columbia issued warrants
for (7) Google location data for Nauta’s Google account (Gov’t Ex. 7), and (8) Verizon cellsite
location data for Nauta’s phones (Gov’t Ex. 8). A different FBI special agent provided affidavits
in support of these warrants (the “D.C. warrants”). 3
To avoid intrusion into any potentially privileged material, the South Florida warrants
contained the following filter protocol for potential attorney-client privilege:
NAUTA has been represented by attorneys in this matter since at least in or around
May 2022. A Filter Team will review seized communications and segregate
potentially protected materials, i.e., communications that are to/from an attorney,
or that otherwise reference or reflect attorney advice. The Filter Team will have no
future involvement in the investigation of this matter. At no time will the Filter
Team advise the Prosecution Team of the substance of any of the potentially
protected materials. The Filter Team then will provide all communications that are
not potentially protected materials to the Prosecution Team and the Prosecution
Team may resume its review. If at any time the government identifies seized
materials that are potentially attorney-client privileged or subject to the work
product doctrine (“protected materials”), the Prosecution Team will discontinue
review until a Filter Team of government attorneys and agents can review the
potentially privileged documents. If the Filter Team concludes that any of the
potentially protected materials are not protected (e.g., the communication includes
a third party or the crime-fraud exception applies), the Filter Team must obtain
either agreement from defense counsel for the privilege holder or a court order
before providing these potentially protected materials to the Prosecution Team. If
possible, government attorneys will engage with the privilege holder to resolve
privilege determinations before proceeding to court for judicial review.
3
There was nothing improper, as Nauta insinuates, about the Government obtaining the
location warrants in D.C. after having obtained warrants for Nauta’s phones and electronic
accounts in the Southern District of Florida. The Southern District of Florida was the proper venue
to seek the phone warrants because Nauta’s phones were physically located in West Palm Beach
at the time, see Fed. R. Crim. P. 41(b)(1), and, for efficiency, the Government appropriately sought
warrants for electronic accounts associated with those phones at the same time. It was also
appropriate to apply for the location data warrants in D.C. in February 2023. At the time, a grand
jury in D.C. was actively investigating obstruction of the grand jury’s investigation by Nauta and
others, and under the Stored Communications Act, venue existed for obtaining the warrants in any
court having jurisdiction over the offenses being investigated. See 18 U.S.C. § 2711(3)(A)(i).
2
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Gov’t Ex. 1 ¶ 64; Gov’t Exs. 2 and 3 ¶ 65; Gov’t Ex. 4 ¶ 62; Gov’t Ex. 5 ¶ 80; Gov’t Ex. 6 ¶ 79.
The D.C. warrants did not contain a filter protocol because those warrants only sought location
information, not the contents of electronic communications, and therefore would not yield
privileged communications.
B.
The Warrant Affidavits
The affidavits alleged the following facts supporting probable cause. Unless otherwise
noted, these facts were included in each of the Nauta warrants.
Nauta is an employee of defendant Donald J. Trump and had been a valet in the White
House during Trump’s administration. Nauta previously held a high-level security clearance and
received training in handling classified documents. Gov’t Exs. 1, 2, and 3 ¶ 10; Gov’t Exs. 4, 5,
and 6 ¶ 11; Gov’t Exs. 7 and 8 ¶ 12.
During his presidency, Trump used dozens of boxes to accumulate and store records in an
informal filing system. Gov’t Exs. 1, 2, and 3 ¶ 12; Gov’t Exs. 4, 5, and 6 ¶ 13; Gov’t Exs. 7 and
8 ¶ 14. At the end of his presidency in January 2021, around 85 to 95 of these boxes were removed
from the White House and transported to Mar-a-Lago, Trump’s residence in Palm Beach, Florida,
where they were later placed in a storage room. Gov’t Exs. 1, 2, and 3 ¶¶ 14-17; Gov’t Exs. 4, 5,
and 6 ¶¶ 15-18; Gov’t Exs. 7 and 8 ¶¶ 16-19. Nauta was part of the team that packed items into
boxes for Trump in his residence at the White House for the move to Mar-a-Lago at the end of
Trump’s presidency in January 2021. Gov’t Exs. 1, 2, and 3 ¶ 13; Gov’t Exs. 4, 5, and 6 ¶ 14;
Gov’t Exs. 7 and 8 ¶ 5. Throughout 2021, the National Archives and Records Administration
(“NARA”) had ongoing communications with Trump’s representatives to obtain records from his
administration. Gov’t Exs. 1, 2, and 3 ¶ 18; Gov’t Exs. 4, 5, and 6 ¶ 19; Gov’t Exs. 7 and 8 ¶ 20.
Trump wanted to review his boxes before providing them to NARA, and employees (including
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Nauta) brought two to four at a time to his personal residence in Mar-a-Lago for him to review.
Gov’t Exs. 1, 2, and 3 ¶¶ 18-19; Gov’t Exs. 4, 5, and 6 ¶¶ 19-20; Gov’t Exs. 7 and 8 ¶¶ 20-21.
After the employees (including Nauta) brought about 15 to 17 boxes, Trump instructed them to
stop, and on January 17, 2022, employees handed over 15 boxes to NARA. Gov’t Exs. 1, 2, and
3 ¶¶ 21-24; Gov’t Exs. 4, 5, and 6 ¶¶ 22-25; Gov’t Exs. 7 and 8 ¶¶ 23-26. Trump indicated to his
staff that the 15 boxes were the only boxes that would be going to NARA and that there were no
more, and he instructed an employee to tell one of his lawyers there were no more boxes at Mara-Lago. Gov’t Exs. 1, 2, and 3 ¶¶ 23-25; Gov’t Exs. 4, 5, and 6 ¶¶ 24-26; Gov’t Exs. 7 and 8 ¶¶
25-27. But about 70 to 80 boxes remained in the storage room. Gov’t Exs. 1, 2, and 3 ¶ 26; Gov’t
Exs. 4, 5, and 6 ¶ 27; Gov’t Exs. 7 and 8 ¶ 28.
NARA reviewed the 15 boxes and found highly classified documents intermixed with other
records. Gov’t Exs. 1, 2, and 3 ¶ 6; Gov’t Exs. 4, 5, and 6 ¶ 7; Gov’t Exs. 7 and 8 ¶ 8. NARA’s
Office of the Inspector General sent a referral to the Department of Justice by email on February
9, 2022. Id. The FBI reviewed the 15 boxes and determined that 14 of the boxes contained a total
of over 100 documents with classification markings. Gov’t Exs. 1, 2, and 3 ¶ 27; Gov’t Exs. 4, 5,
and 6 ¶ 28; Gov’t Exs. 7 and 8 ¶ 29. On May 11, 2022, an attorney for Trump accepted service of
a grand jury subpoena for all documents with classification markings in the custody or control of
Trump and/or his office. Gov’t Exs. 1, 2, and 3 ¶¶ 8, 28; Gov’t Exs. 4, 5, and 6 ¶¶ 9, 29; Gov’t
Exs. 7 and 8 ¶ 10, 30. On June 2, 2022, the lawyer went to Mar-a-Lago to search through the
boxes in the storage room for responsive documents, and he collected documents from the boxes
and placed them in a folder. Gov’t Exs. 1, 2, and 3 ¶¶ 29, 36, 38; Gov’t Exs. 4, 5, and 6 ¶¶ 30, 37,
and 39; Gov’t Exs. 7 and 8 ¶ 31, 38, and 40. Prior to the attorney’s June 2 search for responsive
records in the storage room, between May 24 and June 1, 2022, Nauta moved approximately 64
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boxes out of the storage room, and on June 2, shortly before the attorney went to the storage room
to conduct his search, Nauta moved 25 to 30 boxes back into the storage room. Gov’t Exs. 1, 2,
and 3 ¶¶ 36-37; Gov’t Exs. 4, 5, and 6 ¶¶ 37-38; Gov’t Exs. 7 and 8 ¶ 38-39. On June 3, 2022,
when the attorney gave the folder with the responsive documents to FBI agents, containing over
three dozen documents with classification markings, the attorney also provided a certification
(signed by another attorney for Trump) stating that “[a] diligent search was conducted of the boxes
that were moved from the White House to Florida,” the search was conducted “in order to locate
any and all documents that are responsive to the subpoena,” and “[a]ny and all responsive
documents accompany this certification.” Gov’t Exs. 1, 2, and 3 ¶ 29; Gov’t Exs. 4, 5, and 6 ¶ 30;
Gov’t Exs. 7 and 8 ¶ 31.
Nauta twice provided false or misleading information to federal investigators about his
knowledge of the boxes. First, on May 26, 2022, Nauta gave a recorded, voluntary interview to
the FBI. Gov’t Exs. 1, 2, and 3 ¶ 39; Gov’t Exs. 4, 5, and 6 ¶ 40; Gov’t Exs. 7 and 8 ¶ 41. The
agents explained to Nauta that the FBI was investigating the storage of classified documents at
Mar-a-Lago and was particularly interested in where the boxes with classified documents (the 15
boxes provided to NARA in January 2022) had been located and whether they had been moved
outside the storage room. Id. During the interview, Nauta—who had moved the boxes for weeks,
two or three boxes at a time, from the storage room to Trump’s residence for Trump to review—
falsely stated that he first saw the boxes in Pine Hall, the anteroom to Trump’s personal residential
suite at Mar-a-Lago, on the day the truck arrived to pick up the NARA boxes from Mar-a-Lago,
on January 17, 2022, and that he did not know where the boxes had come from prior to their being
in Pine Hall. Gov’t Exs. 1, 2, and 3 ¶ 40; Gov’t Exs. 4, 5, and 6 ¶ 41; Gov’t Exs. 7 and 8 ¶ 42.
Second, on June 21, 2022, Nauta testified before a federal grand jury in D.C. and concealed from
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the grand jury the large number of boxes he had removed from the storage room prior to June 2,
2022, when the attorney reviewed boxes in the storage room to comply with the grand jury
subpoena. Gov’t Exs. 1, 2, and 3 ¶ 42; Gov’t Exs. 4, 5, and 6 ¶ 43; Gov’t Exs. 7 and 8 ¶ 44. On
August 8, 2022, the FBI executed a warrant to search Mar-a-Lago. Gov’t Exs. 1, 2, and 3 ¶ 43;
Gov’t Exs. 4, 5, and 6 ¶ 44; Gov’t Exs. 7 and 8 ¶ 46. The agents found over 100 documents bearing
classification markings, in both the storage room and Trump’s office. Id.
The South Florida warrant affidavits further explained that Nauta had encrypted messaging
applications on both his personal and work cell phones and used both phones to communicate with
colleagues and Trump; that he used his Gmail account, which was associated with his personal
phone, as well as his work email to communicate with several colleagues; and that he was on an
email distribution list with Trump’s daily schedule. 4 Gov’t Exs. 1, 2, and 3 ¶¶ 47-51; Gov’t Ex. 4
¶¶ 48-51; Gov’t Exs. 5, 6 ¶¶ 48-52.
The D.C. warrant affidavits contained information obtained through execution of the South
Florida warrants on Nauta’s phones and additional evidence of Nauta’s involvement in obstruction.
Text messages from Nauta’s phone showed that on the evening of June 24, 2022, the same day
4
The Government has produced the search warrant materials to Nauta in discovery.
However, the full version of the work iCloud warrant application (Gov’t Ex. 6) was given to
Nauta’s counsel on March 1, 2024, after the Government noticed that this warrant was not
mentioned in Nauta’s motion, and after confirming with Nauta’s counsel that he did not possess a
full, unredacted copy of this warrant application. However, the property receipt associated with
this warrant was produced to Nauta earlier, and the filtered, scoped returns from this warrant were
also previously produced to Nauta. Moreover, in August 2023, Nauta’s counsel was informed in
a letter from a Government filter attorney that he was being provided with an unredacted, unscoped
copy of the production for this iCloud account. Finally, a redacted version of this warrant affidavit
has been publicly available since August 2023. See 22-mj-8550, ECF No. 14 (Aug. 28, 2023). The
iCloud warrant application was identical to the other South Florida warrants for purposes of the
issues raised in this motion, and, as explained below, there is no basis to suppress evidence from
any of the warrants.
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that the Department of Justice had sent counsel for the Trump Organization a subpoena for Mara-Lago CCTV security footage and three days after Nauta had testified in the grand jury, Nauta
had begun coordinating a secret trip to Mar-a-Lago for the next day (June 25). Gov’t Exs. 7 and
8 ¶ 45. Nauta falsely told several people that he was going to Florida because he had a family
emergency.
Id.
Instead, Nauta communicated with the Mar-a-Lago property manager,
codefendant Carlos De Oliveira, and flew from New Jersey to Palm Beach, where—as shown on
the subsequently obtained security footage and corroborated by text messages—Nauta and De
Oliveira met at Mar-a-Lago the evening of June 25, 2022. Id. There, the two walked in the
basement tunnels and entered the storage room area. Nauta appeared to be holding a cell phone in
his hand, and De Oliveira gestured in the direction of CCTV cameras in the vicinity of the storage
room. Id.
The D.C. warrant affidavits further explained that location information connected to
Nauta’s Google account and from his cell phone service provider would aid in the investigation
by pinpointing where Nauta was at key points relevant to the case, including his whereabouts when
he rendezvoused at Mar-a-Lago with De Oliveira the weekend of June 25 after Trump received
the subpoena for CCTV footage that would show Nauta and De Oliveira moving boxes. Gov’t
Exs. 7 and 8 ¶¶ 55-56.
II.
Argument
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend IV. Nauta contends that (1) the warrant
affidavits failed to establish probable cause for the searches authorized by the warrants, Mot. at 918; (2) the affidavits contained intentionally or recklessly false statements or misleading omissions
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that were necessary to establishing probable cause, Mot. at 19-22; (3) the warrants failed to state
the places to be searched and items to be seized with sufficient particularity, Mot. at 16-18; (4)
agents went beyond the scope of the searches authorized by the warrants when executing the
warrants, Mot. at 18-19; and (5) certain vaguely described due-process violations require
suppression of the fruits of the warrants, Mot. at 22-23. These arguments are without merit.
A.
Probable Cause
The affidavits submitted in support of the warrants to search Nauta’s electronic devices
and associated electronic records amply established probable cause for those searches. But even
if the warrants fell short in establishing probable cause, which they did not, the good-faith
exception to the exclusionary rule would foreclose suppression of the evidence obtained through
execution of the warrants.
1.
The Affidavits Established Probable Cause for All the Listed Offenses
“Probable cause exists ‘if facts within the magistrate’s knowledge and of which he had
reasonably trustworthy information would warrant a man of reasonable caution in the belief that a
crime was committed and that evidence is at the place to be searched.’” United States v.
Betancourt, 734 F.2d 750, 754 (11th Cir. 1984) (quoting United States v. Strauss, 678 F.2d 886,
892 (11th Cir. 1982)). “The issuing magistrate is to make a ‘practical, common-sense decision’
about whether the ‘totality of the circumstances’ indicate that there is probable cause that the
sought-for evidence will be obtained.” United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990)
(quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). “A magistrate’s decision that probable
cause exists is conclusive absent arbitrariness.” Betancourt, 734 F.2d at 754. “[A]fter-the-fact
scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A
magistrate’s determination of probable cause should be paid great deference by reviewing courts.”
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Gates, 462 U.S. at 236 (quotation marks omitted). The affidavits here established probable cause
to conclude that evidence of each of the crimes listed in the warrants would be found in Nauta’s
electronic devices and associated electronic records. 5
a.
18 U.S.C. § 793(e) and 18 U.S.C. § 1519
The affidavits provided ample basis to conclude that evidence of unlawful retention of
national defense information, in violation of 18 U.S.C. § 793(e), and evidence of efforts to impede
or obstruct a federal criminal investigation, in violation of 18 U.S.C. § 1519, would be found in
Nauta’s electronic devices and associated electronic records. Those affidavits described the large
volume of documents with classified markings found at Mar-a-Lago; Trump’s familiarity with the
boxes; his requests to have them brought to the hall outside his residence for his review; and his
efforts to retain the boxes by (a) falsely claiming that all of the boxes with presidential records had
been given to NARA, and (b) misleading his attorney through Nauta’s surreptitious box movement
in the days prior to the attorney’s review in the storage room. The affidavits also depict Nauta’s
central role in the obstruction: the FBI informed Nauta during an interview on May 26, 2022, that
there was an investigation of classified documents at Mar-a-Lago with a particular focus on the
storage room and other locations where classified documents might be located. Gov’t Exs. 1, 2,
and 3 ¶ 39; Gov’t Exs. 4, 5, and 6 ¶ 40; Gov’t Exs. 7 and 8 ¶ 41. Within six days of that interview,
Nauta went to the storage room and removed approximately 60 boxes, and accompanied Trump’s
attorney to the storage room on June 2 knowing that the attorney was there to review boxes, and
5
Contrary to Nauta’s assertion (Mot. at 3-4), the fact that the Superseding Indictment does
not include charges of violating 18 U.S.C. § 2071 or 18 U.S.C. § 1623 does not mean that probable
cause was lacking for those offenses. See, e.g., United States v. Vann, 336 F. App’x 944, 946 (11th
Cir. 2009) (affirming denial of suppression where the defendant “was not indicted for the
controlled buys conducted on April 21, 2007 and described in the officers’ search warrant
affidavit”). That is particularly true where, as here, his grand jury testimony occurred in a different
district from where he was indicted.
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knowing that he (Nauta) had removed at least thirty more boxes from the storage room than he had
subsequently put in. Gov’t Exs. 1, 2, and 3 ¶ 36; Gov’t Exs. 4, 5, and 6 ¶ 37; Gov’t Exs. 7 and 8
¶ 38. The D.C. affidavits included additional evidence supporting probable cause, including
evidence of Nauta’s clandestine trip to Mar-a-Lago on the heels of Trump receiving a subpoena
for CCTV footage at Mar-a-Lago that would reveal Nauta’s surreptitious box movement. Gov’t
Exs. 7 and 8 ¶ 45.
Nauta’s claim that the affidavits “failed to show that national defense information was
involved” is wrong. Mot. at 12. The affidavits noted that scores of documents with classification
markings were stored at Mar-a-Lago, including documents at the highest classification levels with
limited distribution. See Gov’t Exs. 1, 2, and 3 ¶ 6; Gov’t Exs. 4, 5, and 6 ¶ 7; Gov’t Exs. 7 and 8
¶ 8.
As the affidavits explained, based on the affiant’s training and experience in the
counterintelligence division, documents with those classification markings would be expected to
contain national defense information. See Gov’t Exs. 1, 2, and 3 ¶¶ 2, 43; Gov’t Exs. 4, 5, and 6
¶¶ 2, 44; Gov’t Exs. 7 and 8 ¶¶ 2, 46. See United States v. Robinson, 62 F.3d 1325, 1331 n.9 (11th
Cir. 1995) (“[O]pinions and conclusions of an experienced agent regarding a set of facts are
properly a factor in the probable cause equation for issuing a search warrant.”) (quotation marks
omitted). Those allegations were more than adequate to provide probable cause that documents
with national defense information were stored at Mar-a-Lago.
Nauta’s contention that the warrant needed to include evidence that Nauta himself violated
Section 793, or any other offense listed in the warrant for that matter, is contrary to well-established
law. “The critical element in a reasonable search is not that the owner of the property is suspected
of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for
and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436
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U.S. 547, 556 (1978); see also Haire v. Thomas, 219 F. App’x 844, 846 (11th Cir. 2006) (“To
issue the warrant the magistrate judge had to determine only that there was a ‘fair probability’ that
Haire has evidence in his home relating to the underlying fraud. The evidence did not necessarily
have to implicate Haire in the crime.”). Therefore, for purposes of probable cause for the warrant,
the affidavits only needed to establish that there was probable cause that evidence of the stated
crimes, whether committed by Trump or Nauta, could be found in the property to be searched, i.e.,
Nauta’s phones and electronic accounts. The affidavits amply made that showing.
b.
18 U.S.C. § 1001 and 18 U.S.C. § 1623
During his FBI interview, Nauta falsely claimed that he was not aware where Trump had
stored boxes at Mar-a-Lago other than Pine Hall, the anteroom to Trump’s residential suite at Mara-Lago, and that he had not seen such boxes prior to the day Nauta assisted in moving the boxes
from Pine Hall to the NARA truck in January 2022, despite Nauta having moved boxes from the
storage room to Pine Hall for Trump’s review over the course of several weeks before NARA’s
pick-up. And when asked in the grand jury about his previous false statement, Nauta denied that
it was false. Such false statements and concealment were material given that the investigation was
attempting to determine where classified documents had been located after the end of the
presidency, and in which rooms they remained at Mar-a-Lago after January 2022.
Further, the magistrate judge could consider the evasive and misleading nature of Nauta’s
answers in assessing probable cause, such as the fact that when asked in the grand jury about when
he had removed boxes from the storage room, Nauta testified that “recently”—by which, in
context, he meant “within the last month” prior to his June 21 testimony—he had removed a box
of challenge coins from the storage room, never mentioning the scores of boxes he had removed
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from the storage room in the few days prior to Trump’s attorney’s review of them on June 2. See
Gates, 462 U.S. at 238-39 (viewing probable cause based on the “totality of circumstances”).
Nauta’s implausible argument that he did not know whether the 15 boxes in Pine Hall were
the “same” boxes he had brought from the storage room before the NARA pick-up in January 2022
does not lead to the conclusion that the warrant lacked probable cause for his false statements or
perjury. A defendant does not escape perjury “simply because the defendant can postulate unstated
premises of the question that would make his answer literally true.” United States v. Hernandez,
921 F.2d 1569, 1574-75 (11th Cir. 1991) (quotation marks omitted).
Finally, Nauta’s claim (Mot. at 10) that the affidavit provides no corroboration of a
witness’s information about Trump’s boxes is untrue. Nauta’s own statements, see Gov’t Exs. 1,
2, and 3 ¶¶ 21-23; Gov’t Exs. 4, 5, and 6 ¶¶ 22-24; Gov’t Exs. 7 and 8 ¶¶ 23-25, as well as a photo
of the storage room that the witness provided, see Gov’t Exs. 1, 2, and 3 ¶ 20; Gov’t Exs. 4, 5, and
6 ¶ 21; Gov’t Exs. 7 and 8 ¶ 22, support the reliability of the witness’s first-hand account of Nauta’s
and Trump’s actions regarding the boxes.
Even if such corroboration were not provided,
“independent police corroboration has never been treated as a requirement” in every case for
probable cause in a search warrant. United States v. Brundidge, 170 F.3d 1350, 1353 (11th Cir.
1999).
c.
18 U.S.C. § 2071
Under 18 U.S.C. § 2071, “[w]hoever willfully and unlawfully conceals, removes,
mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries
away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with
any clerk or officer of any court of the United States, or in any public office, or with any judicial
or public officer of the United States,” commits a federal criminal offense. 18 U.S.C. § 2071(a)
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(emphasis added). The allegations in the affidavits amply established that Trump, aided by Nauta,
concealed and removed sensitive government documents and presidential records that had been
filed or deposited in a public office.
Without citing to any case or authority, Nauta claims that the statute “only applies to record
custodians at the officer level” and suggests that it would be “unconstitutional” to apply the law to
a former President. Mot. at 4-5. A possible defense, including a claim that the “statute is
unconstitutional,” does not undermine probable cause that a statute was violated, Manners v.
Cannella, 891 F.3d 959, 972 (11th Cir. 2018), but in any event, Nauta’s arguments about 18 U.S.C.
§ 2071 are mistaken. As a district court concluded in a case charging the former National Security
Advisor and a member of the National Security Council (“NSC”) in a conspiracy to violate 18
U.S.C. § 2071 by altering sensitive NSC documents:
There is no warrant for supposing, and no legislative history suggesting, that
Congress meant to subject to punishment under section 2071 only those who are
the custodians of records in the technical sense, such as clerks or librarians, but to
permit others working in a government agency who have access to sensitive
documents to destroy or alter them with impunity. The obvious purpose of the
statute is to prohibit the impairment of sensitive government documents by those
officials who have access to and control over them, and no court has ever held to
the contrary.
United States v. Poindexter, 725 F. Supp. 13, 20 (D.D.C. Oct. 24, 1989); see also Coplon v. United
States, 191 F.2d 749 (D.C. Cir. 1951) (upholding 18 U.S.C. § 793 and 18 U.S.C. § 2071
convictions of a Department of Justice employee who had concealed and removed highly secret
FBI reports located in Department of Justice offices not accessible to the public). Moreover, in
“reject[ing] defendant’s argument that application of section 2071 to NSC documents would
intrude upon the constitutionally-based doctrine of executive privilege,” the court in Pointdexter
determined that the “statute, of course, applies only to the unlawful destruction or removal of
official records, and as such it does not impact the functioning of the Presidency.” 725 F. Supp.
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20 n.7 (emphasis omitted); see also id. at 20 n.8 (noting that the purpose of the Presidential Records
Act of 1978 was “to establish public ownership of records created by future Presidents and their
staff in the course of discharging their official duties”). Nauta’s legal challenges do not undermine
probable cause in the affidavits.
2.
The Good-Faith Exception Forecloses Suppression
Even if the warrant affidavits failed to establish probable cause, which they did not, the
good-faith exception to the exclusionary rule would foreclose suppression. See United States v.
Leon, 468 U.S. 897, 922 (1984). When a defendant seeks suppression based on a claim that the
warrant affidavit failed to establish probable cause, suppression is warranted only if the “warrant
is based on an affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” United States v. McCall, 84 F.4th 1317, 1325 (11th Cir. 2023)
(quotation marks omitted). “To exclude evidence on this ground, the affidavit must be so clearly
insufficient that it provided no hint as to why police believed they would find incriminating
evidence.” Id. (quotation marks omitted). The “officer’s judgment must be more than just
mistaken—it must be so plainly incompetent that no officer of reasonable competence would have
requested the warrant.” Id. Those circumstances are not remotely present here.
B.
There Were No Materially Misleading Omissions in the Affidavits
“There is . . . a presumption of validity with respect to the affidavit supporting the search
warrant,” Franks v. Delaware, 438 U.S. 154, 171 (1978), but a defendant may, in “limited”
circumstances, id. at 167, attack the validity of a warrant affidavit if the defendant (1) after a
hearing, demonstrates by a preponderance of the evidence that the affiant made intentionally false
or recklessly misleading statements, and (2) “with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause,” id. at 156. To obtain a
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hearing to try to substantiate claims of intentional or reckless falsity in a warrant affidavit, the
defendant must make a “substantial preliminary showing.” Id. at 155, 170. The allegations of
deliberate falsehood or reckless disregard for the truth must be “more than conclusory” and should
be “accompanied by an offer of proof” and “a statement of supporting reasons.” Id. at 171.
“Allegations of negligence or innocent mistake are insufficient.”
Id.
And even “if these
requirements are met,” a hearing is still not warranted “if, when material that is the subject of the
alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant
affidavit to support a finding of probable cause.” Id. at 171-72.
In addition to affirmative false statements, Franks may also apply to omissions, but only
if they are intentionally or recklessly misleading and also material to a finding of probable cause.
“An affiant cannot be expected to include in an affidavit every piece of information gathered in
the course of an investigation,” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990), and
scrutinizing an affidavit for “omission[s] potentially opens officers to endless conjecture about
investigative leads, fragments of information, or other matter that might, if included, have
redounded to defendant’s benefit,” United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001)
(quotation marks omitted). Accordingly, a defendant must make a substantial preliminary showing
that an omission was deliberately or recklessly misleading, not “made negligently or because of
an innocent mistake.” United States v. Whyte, 928 F.3d 1317, 1333 (11th Cir. 2019). And the
omission must be material, which means that “inclusion of the omitted facts would have prevented
a finding of probable cause.” United States v. Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009)
(quotation marks omitted); see United States v. Maxi, 886 F.3d 1318, 1331–32 (11th Cir. 2018).
Nauta makes several baseless allegations of omission that are either flatly untrue, turn out
not to be omitted from the affidavits, or do not detract from or have relevance to probable cause.
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1. Nauta claims that the D.C. search warrant affidavits “omitted that multiple prior
warrant executions as to Nauta yielded no inculpatory evidence as to any purported crimes.” Mot.
at 11, 12. But the evidence contradicts this erroneous claim: the South Florida warrants did, in
fact, yield inculpatory evidence, and that evidence was included in the affidavits submitted in
support of the D.C. warrants. See Gov’t Exs. 7 and 8 ¶¶ 13 and 45. Specifically, a day after the
Department of Justice sent a subpoena to a Trump representative on June 24, 2022, for CCTV
footage at Mar-a-Lago, Nauta made a secret trip to Mar-a-Lago after falsely telling several people
that he was going to Florida for family reasons. At Mar-a-Lago, Nauta met with codefendant
Carlos De Oliveira, and together they toured the basement area of Mar-a-Lago, where De Oliveira
gestured in the direction of the CCTV cameras near the storage room. More evidence will be
presented at trial, but at a minimum, there was a reasonable basis to believe that additional
obstruction had occurred.
2. Contrary to Nauta’s assertions (Mot. at 7, 21), the affidavits accurately described
the context of Nauta’s FBI interview and grand jury appearance. Nauta was interviewed by the
FBI on May 26, 2022, in the presence of his attorney (a prior attorney, not his current attorney) at
an FBI office, where he was warned by the agents about the federal crime of making false
statements, in violation of 18 U.S.C. § 1001, and told that the FBI was investigating classified
documents that had been improperly located at Mar-a-Lago. In no sense was this, as described by
Nauta, an “informal conversation.” Mot. at 7, 21. And the transcript of the interview, included as
an exhibit to Nauta’s motion, shows that the FBI asked Nauta multiple questions about the 15
boxes provided to NARA, where those boxes had been stored at Mar-a-Lago, who moved them to
the vestibule of the former President’s residence, and whether any other boxes were stored at Mar-
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a-Lago, and Nauta repeatedly dissembled. 6 And Nauta’s later attempts to try to explain away some
of these statements before the grand jury were equally implausible. 7
3. Nauta claims that the FBI special agent who swore to Nauta’s South Florida
warrants made a false statement in an unrelated complaint affidavit in an unrelated case against a
January 6 Capitol rioter and that this should have been disclosed to an “issuing magistrate.” Mot.
at 6 n.3. The complaint affidavit in the January 6 case stated that “at least one federal police officer
died as a result of the injuries he sustained.” United States v. Allan, 21-cr-64, ECF No. 1 ¶ 18
(D.D.C. Jan. 20, 2021). Months after this affidavit, a medical examiner determined that the officer
had died of natural causes from strokes occurring hours after the officer’s confrontation with the
6
See, e.g., Gov’t Ex. 9 at 30 (Question: “Is there any other place [other than the vestibule
of the former President’s residence] that the President could have kept boxes?” Answer: “Not—
not to my knowledge.”); id. at 31-32 (Question: “Okay, but as far as you know, no rooms have
held or did hold, like, boxes similar to what you brought, brought onto the truck [to NARA].”
Answer: “As far as I know, no.”); id. at 34 (“If we wanted to find out, hey are there like, were
these boxes stored somewhere, like who would be the person to—to ask about?” Answer: “I
wouldn’t know.”); id. at 47 (Question: “We were talking about a year, so can—can you guess
where they [the 15 boxes] could have been or where they could have come from?” Answer: “I
don’t want to guess. I just, I just, my answer is I don’t know.”); id. at 49 (Question: “But even
within Mar-a-Lago . . . is there a place where boxes could be stored?” Answer: “There’s many
storage units that I haven’t, you know, I assume that I haven’t even, that could be places that aren’t
even storage units that I . . . You know? There’s a lot of doors on Mar-a-Lago.”); id. at 52
(Question: “So, you . . . had no idea how they [the 15 boxes] got there [in the vestibule of the
former President’s residence] before?” Answer: “No.”).
7
See Ex. 10 at 56-57 (Question: “Did you tell the FBI that the first time you had ever seen
any of the boxes was when you moved them from Pine Hall to the moving truck?” Answer: “Yes.”
Question: “But it’s your testimony before the grand jury today that in fact, you moved boxes up
from the basement to Pine Hall, right?” Answer: “Weeks prior, yes.” Answer: “So sir, I have to
ask; why would you have told the FBI that the first time you saw them was much later, when in
fact, you saw them weeks prior?” Answer: “They had asked me if I had saw those boxes in Pine
Hall. That’s what I understood what they were asking at the time.” Question: “And when you told
the FBI that you didn't know where the boxes in Pine Hall came from, that actually turns out not
to be true, right?” Answer: “Well, I mean, that could have been the boxes that I brought up, or they
could have been boxes from wherever they were inside his room.” Question: “But to your
knowledge, you’ve been the only one who’s taken boxes from the storage room in the basement
to Pine Hall in the residence, right?” Answer: “To my knowledge and from what I understand, the
boxes that I moved, yes.”).
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mob, but the examiner concluded that “all that transpired played a role in his condition.” 8 Nauta
provides no evidence to suggest the statement in the January 6 complaint affidavit was
intentionally deceptive, much less that its omission from the affidavits in this case had an impact
on probable cause.
4. Nauta contends that the affidavits “hid the partisan political influence brought to
bear on NARA.” Mot. at 19. As the Government has explained in opposing the defendants’
motion to compel discovery (ECF No. 277) and Trump’s motion to dismiss the indictment or
suppress evidence on due-process grounds (filed by email today), there is no evidence to support
their conspiratorial claims that purported bias at NARA affected this criminal investigation. And
for purpose of this motion to suppress, Nauta fails to show that the affiants knew of or recklessly
omitted these unsupported claims from the affidavits, let alone explain how his fictive allegations
of bias would detract from probable cause shown here. See United States v. Taylor, No. 14-CR0303, 2015 WL 5923580, at *2 (S.D. Ala. Oct. 12, 2015) (“[T]he Eleventh Circuit and other courts
have cast a dim view on the argument that omission of details about [an informant]’s criminal
history and potential biases triggers a Franks remedy.”).
5. Nauta falsely claims (Mot. at 20) that the affidavits omitted the fact that the
subpoena was addressed to the Office of former President Trump. But in fact, the affidavit
expressly stated: “on May 11, 2022, the Department of Justice (‘DOJ’) served a grand jury
subpoena on counsel for the Office of the Former President (the ‘Office’) seeking ‘any and all
documents . . . bearing classification markings’ in FPOTUS’s and/or the Office’s possession.”
Gov’t Exs. 1, 2, and 3 ¶ 8; Gov’t Exs. 4, 5, and 6 ¶ 9; Gov’t Exs. 7 and 8 ¶ 10.
8
https://www.washingtonpost.com/local/public-safety/brian-sicknick-death-strokes/2021
/04/19/36d2d310-617e-11eb-afbe-9a11a127d146_story.html.
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6.
Nauta alleges that the Government “hid” an “apparent refusal to interview President
Trump.” Mot. at 21. Nauta offers no support for his claim, but in any event, there is no reason to
believe that the non-interview of one subject of an investigation ahead of a court-authorized search
of another subject’s devices and accounts would have any bearing on the probable cause contained
in the affidavits.
7.
Nauta claims that the D.C. affidavits “failed to acknowledge that [the Mar-a-Lago
IT Director] had unequivocally denied any impropriety in Nauta’s June 2022 trip to Mar-a-Lago.”
Mot. at 21. But the first time the Government questioned the IT Director about Nauta’s 2022 trip
was during the IT Director’s March 2023 grand jury testimony, one month after the last Nauta
warrant was issued. 9 Accordingly, the Court need not look further regarding this claim. 10
8.
Nauta also suggests (Mot. at 9) that the affidavits should have mentioned that a
Trump Organization attorney had requested that the Trump Organization’s Director of Security
preserve the CCTV footage after receiving the subpoena for the footage. But any such request by
an uncharged Trump Organization attorney does not undermine probable cause to believe that
Nauta and his coconspirators had engaged in separate bad-faith attempts to delete the footage
immediately after the subpoena was received.
9
The FBI interviewed the IT Director in late January 2023, but the interviewing agent at
that point was not aware of text messages between Nauta and the IT Director and therefore no
questions were asked about Nauta’s June 2022 trip.
10
In grand jury testimony after the Nauta warrants, the IT Director denied knowing about
the nature of Nauta’s June 2022 trip, but his denials were suspect and turned out to be false. As
the Court is aware from prior litigation, the IT Director (referred to in the Superseding Indictment
as “Trump Employee 4”) provided false denials in testimony before the grand jury at a time when
he was represented by Nauta’s counsel, whose legal fees were paid by Trump’s political action
committee. Trump Employee 4 provided to the Government the facts set forth in the Superseding
Indictment immediately after switching to new, conflict-free counsel. See, e.g., ECF No. 129 at
2-5.
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9.
In a single sentence without elaboration or explanation, Nauta also claims that the
affidavit “hid information” about purported political bias on the part of counsel for a witness in
the investigation. Mot. at 21. He offers no support for the notion that any such information, even
if true, should be included in a search warrant affidavit, much less that its omission would
undermine probable cause.
10.
Nauta’s “adopt[ion]” of the arguments in Trump’s motion to suppress is also
unavailing. Mot. at 22. None of the arguments in Trump’s motion has merit, as addressed in the
Government’s response to Trump’s motion, and Nauta does not explain how any of Trump’s
arguments undermine probable cause in the warrants to search Nauta’s phones and electronic
accounts.
C.
Particularity and Overbreadth
A warrant “need only describe the place to be searched with sufficient particularity to direct
the searcher, to confine his examination to the place described, and to advise those being searched
of his authority.” United States v. Weinstein, 762 F.2d 1522, 1532 (11th Cir. 1985) (quotation
marks omitted). And a warrant describes the things to be seized with sufficient particularity “when
it enables the searcher to reasonably ascertain and identify the things authorized to be seized.”
Betancourt, 734 F.2d at 754-55. Neither “elaborate specificity” nor “technical perfection” is
necessary. United States v. Bradley, 644 F.3d 1213, 1259 (11th Cir. 2011) (quotation marks
omitted). “It is universally recognized that the particularity requirement must be applied with a
practical margin of flexibility, depending on the type of property to be seized” and the nature of
the investigation. United States v. Wuagneux, 683 F.2d 1343, 1348-49 (11th Cir. 1982). “Cloud
or data-based warrants with a sufficiently tailored time-based limitation can undermine any claim
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that they are the ‘internet-era version of a ‘general warrant.’” United States v. McCall, 84 F.4th
1317, 1328 (11th Cir. 2023) (quoting United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017)).
The warrants identified the items to be seized as documents and records that reflected
violations of 18 U.S.C. § 793, § 2071, § 1519, § 1001, and § 1623, and involving Nauta and any
coconspirator, since January 2021 (for the South Florida warrants) and since November 2021 (for
the D.C. location warrants). The South Florida warrants that involved contents of electronic
communications (Gov’t Exs. 1, 4, 5, and 6) further specified in Attachment B the information to
be seized as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Communications, records, documents, and other files regarding the access
to or movement or location of any boxes or records;
Information, including communications in any form, regarding the retrieval,
storage, or transmission of national defense information or classified
material;
Information, including communications in any form, regarding any
government and/or Presidential records created between January 20, 2017,
and January 20, 2021;
Any evidence of the knowing alteration, destruction, or concealment of any
government and/or Presidential records, or of any documents with
classification markings;
Communications, records, documents, and other files regarding the source
and nature of any monetary transactions;
Evidence indicating how and when the [TARGET PHONES or account]
were accessed or used to determine the context of phone access, use, and
events relating to the crimes under investigation and to the phone user;
Evidence establishing the motive, capability, or willingness to commit the
above referenced crimes, including but not limited to evidence indicating
the phone user’s state of mind as it relates to the crimes under investigation;
The identity of the person(s) who communicated with the account user
about matters relating to violations of the above-referenced crimes,
including records that help reveal their whereabouts.
This detailed description, combined with the warrants’ temporal limitations, provided
ample direction to searchers and readily satisfied the Fourth Amendment’s particularity
requirements. See McCall, 84 F.4th at 1328. But even assuming these descriptions fell short,
which they did not, the good faith exception to the exclusionary rule forecloses suppression.
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Insufficient particularity in a warrant can lead to suppression only when the warrant is “so facially
deficient,” i.e., so lacking in particularity, that “the executing officers cannot reasonably presume
it to be valid.” Leon, 468 U.S. at 923; see Blake, 868 F.3d at 975 (warrant lacked particularity but
good-faith exception foreclosed suppression). Nothing like that happened here. Whatever Nauta’s
criticisms of the warrant’s particularity or overbreadth, it was “objectively reasonable” for agents
to rely on the warrant. United States v. Travers, 233 F.3d 1329, 1329 (11th Cir. 2000) (quotation
marks omitted). The warrant affidavits here are certainly “not so facially deficient . . . that the
executing officers could not have reasonably presumed [them] to be valid.” Id. at 1330 (quotation
marks omitted).
D.
Execution of the Search Warrants Was Reasonable
Nauta suggests (Mot. at 18-19) that the execution of the search of digital evidence took too
long and was impermissibly broad in scope, but he proffers nothing to substantiate his allegation,
much less demonstrate the “flagrant disregard” of the terms of the warrant required to prevail on
such a claim. See Wuagneux, 683 F.2d at 1354. Nauta points to no part of the filtered, scoped
production given to him that exceeds the scope of the warrant, and even if he had, that alone would
be insufficient to mandate suppression. Id. (“[A]bsent a flagrant disregard of the terms of the
warrant, the seizure of items outside the scope of a warrant will not affect admissibility of items
properly seized.”) (quotation marks omitted); United States v. Maali, 346 F. Supp. 2d 1226, 1254
(M.D. Fla. 2004) (“[A]ny finding of flagrant disregard in this case must be founded upon
something other than the sheer volume of documents seized or the fact that some items outside the
scope of the warrants were taken.”).
The South Florida warrants were executed in November 2022, and the review of the digital
evidence was accomplished within six months. And considering the time it took to receive the
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returns from the providers, filter the returns for attorney-client privilege, and review the substantial
amount of data contained (there were over 200,000 Nauta communications), there was nothing
unreasonable about the time the search took. Indeed, document reviews of a much longer duration
have been found to be reasonable. See, e.g., United States v. Jarman, 847 F.3d 259, 266-67 (5th
Cir. 2017) (review lasting 23 months was not unreasonable); United States v. Lee, No. 1:14-cr227-TCB-2, 2015 WL 5667102, at *4 (N.D. Ga. Sept. 25, 2015) (review lasting more than three
years did not signify unreasonableness).
E.
No Due Process Violations
Nauta alleges a mix of what he claims are “due process violations.” Mot. at 2. He does
not cite any legal authority, let alone explain why these purported violations should entitle him to
legal relief. Regardless, Nauta’s claims are factually unfounded.
1. Nauta contends that the grand jury “was improperly invoked and exceeded
jurisdiction.” Mot. at 22. But there was nothing improper about the initiation of the grand jury in
the District of Columbia, as explained more fully in the Government’s response to Trump’s
motions to dismiss based on prosecutorial misconduct and due process violations (filed by email
today). In short, when the Government started the grand jury investigation in the District of
Columbia, it could not know the full scope of the evidence that would be gathered, but from the
outset, the investigation encompassed conduct that spanned the District of Columbia and the
Southern District of Florida, and the investigation uncovered evidence of federal offenses in both
districts. And although the Government ultimately decided to bring charges in Florida, there was
nothing inappropriate about that: the Government’s charging decisions must be reached “at the
conclusion of the grand jury’s labors, not at the beginning,” Blair v. United States, 250 U.S. 273,
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282 (1919), and “hindsight is not the proper perspective for discerning the limits of a grand jury’s
investigative power,” United States v. Paxson, 861 F.2d 730, 733 (D.C. Cir. 1988).
2. Nauta wrongly alleges (Mot. at 22) that there were attorney-client communications
used to obtain the Nauta search warrants. In fact, no search warrant affidavit in this case relied on
any attorney-client privileged communication, and Nauta fails to cite to any portion of any Nauta
affidavit to support or clarify his allegation. As explained further below, a filter process was used
so that the case team never received any potentially privileged Nauta communications.
Nor does Nauta’s reference to Trump’s motion regarding crime-fraud communications
help his suppression motion. The last Nauta search warrant was obtained in February 2023, more
than one month before the Chief Judge in the District of Columbia issued the order regarding the
crime-fraud exception as to Trump’s attorneys and ordering the disclosure of evidence to the
Government.
It was thus impossible for the Government to have used any of Trump’s
communications with his attorneys in Nauta’s warrant affidavits.
3. As described above, Nauta’s South Florida warrant affidavits all contained a filter
protocol to address potential attorney-client privileged communications contained in the search
warrant returns. 11 The filter process, which was conducted by a different filter team than the one
that was in place for the execution of the search at Mar-a-Lago, was appropriate here for the search
of a non-attorney’s electronic accounts for potentially privileged material. Where records “are
already in the government’s possession as the result of the execution of a search warrant . . . the
use of a filter team to review them is respectful of, rather than injurious to, the protection of
privilege.” In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable
11
As mentioned, the location warrants for Google and Verizon did not include a filter
protocol because the Government was seeking only location data, not content evidence.
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Elec. Means, 11 F.4th 1235, 1250 (11th Cir. 2021) (quotation marks omitted); see id. at 1250 n.10
(noting that its conclusion about the sufficiency of the protocol in the case was specific to the
circumstances involving an attorney’s office and that the court was not “prejudge[ing] other filter
protocols”).
In his request for a sprawling hearing (Mot. at 23-24), Nauta lobs various attacks on the
filter protocol, but he provides nothing to substantiate them. 12 To the contrary, by all indications,
the filter protocol functioned as intended: Nauta has received all of the evidence that made it to
the case team through the filter protocol (and the filter team also provided Nauta all the unfiltered
evidence from the warrants), and he has not claimed that the case team received any privileged
communications. Nauta’s vague assertions, without reference to any legal authorities, are not
sufficient to raise a suppression claim. See United States v. Richardson, 764 F.2d 1514, 1527 (11th
Cir. 1985) (“A motion to suppress must in every critical respect be sufficiently definite, specific,
detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.”).
III.
Conclusion
For the foregoing reasons, Nauta’s motion should be denied in its entirety, and no
evidentiary hearing is required to address the issues he raises.
12
Nauta claims, for example, that “the same U.S. Attorney’s office [was used] as the filter
team,” Mot. at 23-24, but his claim is wrong. And in any event, there is no requirement that a
participant in an established filter process be assigned from a separate U.S. Attorney’s Office.
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Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. 2678084
By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A5502946
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
David V. Harbach, II
Assistant Special Counsel
Special Bar ID #A5503068
Michael E. Thakur
Assistant Special Counsel
Florida Bar No. 1011456
March 7, 2024
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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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