NOTICE of Joining and Adopting by Waltine Nauta as to Donald J. Trump, Waltine Nauta re [327] MOTION to Dismiss [85] Indictment, Based on the Presidential Records Act (Dadan, Sasha)
Page 1 Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 1 of
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-801010-CR-CANNON/REINHART
UNITED STATES OF AMERICA,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVIERA,
Defendants.
/
NOTICE OF DEFENDANT WALTINE NAUTA JOINING AND ADOPTING
Defendant Waltine Nauta, by and through the undersigned counsel and pursuant to Rule of the Federal Rules of Criminal Procedure, hereby respectfully requests this Court take notice of
his joining and adopting former President Trump’s Motion to Dismiss the Superseding Indictment
pursuant to the Presidential Records Act (“PRA”) (Feb. 22, 2024) (ECF No. 327).
Defendant Waltine Nauta is charged in eight counts of the July 27, 2023, Superseding
Indictment, (ECF No. 85), to include: conspiracy to obstruct justice in violation of 18 U.S.C.
§ 1512(k) (Count 33); withholding a document or record in violation of 18 U.S.C. § 1512(b)(2)(A)
(Count 34); corruptly concealing a document or record in violation of 18 U.S.C. § 1512(c)(1)
(Count 35); concealing a document in a federal investigation in violation of 18 U.S.C.
§ 1519 (Count 36); engaging in a scheme to conceal in violation of 18 U.S.C. § 1001(a)(1) (Count
37); making false statements and representations in violation of 18 U.S.C. § 1001(a)(2) (Count
39); altering, destroying mutilating, or concealing an object in violation of 18 U.S.C.
§ 1512(b)(2)(B) (Count 40); and corruptly altering, destroying, mutilating, or concealing a
document, record or other object in violation of 18 U.S.C. § 1512(c)(1) (Count 41). Page 2 Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 2 of
On November 10, 2023, this Court Ordered that defendants submit pretrial motions
pursuant to Rule 12 of the Federal Rules of Criminal Procedure on or before February 22, 2024.
Order (Nov. 10, 2023) (ECF No. 215). Following protracted briefing on the necessity of sealing
references to certain discovery materials, see Order at 1 n.1 (Feb. 27, 2024) (ECF No. 338)
(delineating the, “various sealing/redacting issues before the Court”), the Court Ordered that the
defendants submit their pretrial motions in camera to the extent any motions, “discuss[] or attach[]
discovery materials.” Paperless Order (Feb. 20, 2024) (ECF No. 320). Accordingly, on February
22, 2024, several motions to dismiss were filed on the public docket, while additional motions
were submitted in camera to the Court and the Special Counsel’s Office (“SCO”). See Mot. to
Dismiss (Feb. 22, 2024) (ECF No. 323) (Mr. De Oliveira’s motion to dismiss); Notice (Feb. 22,
2024) (ECF No. 328) (summarizing former President Trump’s seven (7) pretrial motions to
dismiss); Notice (March 1, 2024) (ECF No. 359) (summarizing Mr. Nauta’s five (5) pretrial
motions to dismiss). Pursuant to Local Rule 7.1(c) of the Local Rules for the Southern District of
Florida and this Court’s March 5, 2024, Paperless Order (ECF No. 365), on March 7, 2024, the
SCO submitted its oppositions to these thirteen (13) motions. See Notice (March 7, 2024) (ECF
No. 385). Pursuant to this Court’s March 7, 2024, Notice (ECF No. 383), former President Trump
submitted a reply memorandum in support of his Motion to Dismiss the Superseding Indictment
pursuant to the Presidential Records Act (Feb. 22, 2024) (ECF No. 327), on March 13, 2024. (ECF
No. 399).
Also relevant to the instant notice, on March 1, 2024, America First Legal Foundation
(“AFLF”) moved this Court for leave to submit a brief of amicus curiae in support of former
President Trump’s Motion to Dismiss the Superseding Indictment pursuant to the Presidential
Records Act, (ECF No. 360), which this Court granted by Paperless Order on March 6, 2024 (ECF Page 3 Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 3 of
No. 367). On March 13, 2024, the SCO filed a memorandum in opposition to the amicus curiae
brief. (ECF No. 400).
Absent certain exceptions, the law-of-the-case doctrine generally provides that, “courts are
‘bound by findings of fact and conclusions of law’ previously made in the same
case . . . .’” Rodriguez v. United States, No. 17-CR-157, 2020 U.S. Dist. LEXIS 73450, at *11-(N.D. Ga. Feb. 28, 2020) (citations omitted); see also United States v. Stinson, 97 F.3d 466, (11th Cir. 1996) (“[B]oth the district court and the court of appeals are bound by findings of fact
and conclusions of law made by the court of appeals in a prior appeal of the same case unless (1) a
subsequent trial produces substantially different evidence, (2) controlling authority has since made
a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous
and would work manifest injustice.” (citing United States v. Robinson, 690 F.2d 869 (11th
Cir.1982)). Accordingly, as a general matter, the “‘law of the case’ doctrine generally refer to it as
applying to decisions made by a court of appeals in a prior appeal of the same case.” United States
v. Williams, 728 F.2d 1402, 1406 (11th Cir. 1984) (citing Robinson, 690 F.2d at 872.). Although,
“[t]here is some question as to whether the law of the case doctrine applies to conclusions of the
trial court,” Stinson, 97 F.3d at 469, but this Circuit has previously noted that, “the doctrine is
flexible . . . as long as the case remains within the jurisdiction of the district court.” Williams, F.2d at 1406.
Both former President Trump’s Motion to Dismiss (Feb. 22, 2024) (ECF No. 327) and
AFLF’s amicus curiae brief in support thereof (March 1, 2024) (ECF No. 360), argue, inter alia,
that the documents with classification markings that gave rise to the investigation which resulted
in the prosecution of former President Trump and Messrs. Nauta and De Oliveira were designated
by President Trump as “personal” under the PRA when they were taken from the White House to Page 4 Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 4 of
Mar-a-Lago. See Mot. at 4-5 (Feb. 22, 2024) (ECF No. 327); AFLF Amicus Curiae at 6 (Mar. 2024) (ECF No. 360). As a consequence, former President Trump had “authority” to possess the
records and therefore could neither be investigated nor prosecuted for willfully retaining
documents relating to the national defense in violation of 18 U.S.C. § 793(e). See Mot. at 10-(Feb. 22, 2024) (ECF No. 327) (“NARA’s purported referral to DOJ prosecutors was improper and
not foreseeable to President Trump given NARA’s historical practices. Because the referral was
improper, there was no basis for the FBI to “predicate” an investigation.”); Mot. at 8 (Feb. 22,
2024) (ECF No. 325) (“[P]residential discretion to designate records as personal under the PRA
adds additional ambiguity [to the meaning of ‘unauthorized possession’ under § 793(e).”).
Should the Court agree with former President Trump that it is precluded from reviewing
then President Trump’s designation of the materials transferred from the White House to Mar-aLago as “personal” under the PRA, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 300301 (D.D.C. 2012) (“The only reference in the entire [PRA] to the designation of records as
personal versus Presidential also calls for the decision to be made by the executive . . . .”), quoted
in Mot. at 5 (Feb. 22, 2024) (ECF No. 327), then the Superseding Indictment on its face fails to
plead an element of the offense under § 793(e) insofar as the indictment fails to plead that the
possession of the documents in question was not “unauthorized.” United States v. Resendiz-Ponce,
127 S. Ct. 782, 788 (2007) (“[There are] two constitutional requirements for an indictment: first,
that it contains the elements of an offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, that it enables him to plead an acquittal or conviction
in bar of future prosecutions for the same offense.” (cleaned up)). Accord United States v. Steele,
147 F.3d 1316, 1320 (11th Cir. 1998) (en banc) (“An indictment is sufficient if it: (1) presents the
essential elements of the charged offense, (2) notifies the accused of the charges to be defended Page 5 Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 5 of
against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against
double jeopardy for any subsequent prosecution for the same offense.” (cleaned up)).
Not only does the indictment fail to properly plead an offense under § 793(e), but any such
prosecution was foreclosed by virtue of the fact that judicial review of then President Trump’s
designation of the records as “personal” under the PRA is precluded. See Armstrong v. Bush, F.2d 282, 291 (D.C. Cir. 1991) (“We therefore hold that the PRA precludes judicial review of the
President’s recordkeeping practices and decisions.”). Because a prosecution under § 793(e) is
foreclosed, it was improper for the Department to initiate an investigation, see Mot. at 11 (Feb. 22,
2024) (ECF No. 327), and thus the investigation giving rise to the instant prosecution was not an
“official proceeding” and/or “within the jurisdiction of the executive branch” for former President
Trump, as well as Messrs. Nauta and De Oliveira to obstruct. 1 That an “official proceeding” was
obstructed is again an element of the offenses with which President Trump as well as Messrs.
Nauta and De Oliveira were charged and thus, again, these offenses must be dismissed. See
Resendiz-Ponce, 127 S. Ct. at 788; Steele, 147 F.3d at 1320.
***
Because any decision by this Court as to former President Trump would be binding as to
Mr. Nauta, Mr. Nauta respectfully asks the Court to take notice of his joining former President
Trmp’s Motion to Dismiss the Superseding Indictment pursuant to the Presidential Records Act
(“PRA”) (Feb. 22, 2024) (ECF No. 327).
Former President Trump as well as Messrs. Nauta and De Oliveira, are also charged with making
false statements in violation of 18 U.S.C. § 1001 (Counts 38, 39, and 42). These charges similarly
require that the allegedly “false” statement be material to the investigation at issue, which they
could not be if no lawful investigation was being pursued. See United States v. Boffil-Rivera, F.3d 736, 741 (11th Cir. 2010) (“It is uncontested that conviction under § 1001 requires that the
statement be ‘material’ to the government inquiry.” (emphasis added)). Page 6 Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 6 of
Dated: March 15,
Respectfully submitted,
s/ Stanley E. Woodward, Jr.
Stanley E. Woodward, Jr. (pro hac vice)
Brand Woodward Law, LP
400 Fifth Street NW, Suite Washington, DC 202.996.7447 (telephone)
202.996.0113 (facsimile)
stanley@brandwoodwardlaw.com
s/ Sasha Dadan
Sasha Dadan, Esq. (Fla. Bar No. 109069)
Dadan Law Firm, PLLC
201 S. 2nd Street, Suite Fort Pierce, Florida 772.579.2771 (telephone)
772.264.5766 (facsimile)
sasha@dadanlawfirm.com
Counsel for Defendant Waltine Nauta Page 7 Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 7 of
CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2024, I electronically submitted the foregoing, via
electronic mail, to counsel of record.
Respectfully submitted,
s/ Sasha Dadan
Sasha Dadan, Esq. (Fl. Bar No. 109069)
Dadan Law Firm, PLLC
201 S. 2nd Street, Suite Fort Pierce, Florida 772.579.2771 (telephone)
772.264.5766 (facsimile)
sasha@dadanlawfirm.com
Counsel for Defendant Waltine Nauta
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PlainSite Cover Page
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Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-801010-CR-CANNON/REINHART
UNITED STATES OF AMERICA,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVIERA,
Defendants.
/
NOTICE OF DEFENDANT WALTINE NAUTA JOINING AND ADOPTING
Defendant Waltine Nauta, by and through the undersigned counsel and pursuant to Rule 2
of the Federal Rules of Criminal Procedure, hereby respectfully requests this Court take notice of
his joining and adopting former President Trump’s Motion to Dismiss the Superseding Indictment
pursuant to the Presidential Records Act (“PRA”) (Feb. 22, 2024) (ECF No. 327).
Defendant Waltine Nauta is charged in eight counts of the July 27, 2023, Superseding
Indictment, (ECF No. 85), to include: conspiracy to obstruct justice in violation of 18 U.S.C.
§ 1512(k) (Count 33); withholding a document or record in violation of 18 U.S.C. § 1512(b)(2)(A)
(Count 34); corruptly concealing a document or record in violation of 18 U.S.C. § 1512(c)(1)
(Count 35); concealing a document in a federal investigation in violation of 18 U.S.C.
§ 1519 (Count 36); engaging in a scheme to conceal in violation of 18 U.S.C. § 1001(a)(1) (Count
37); making false statements and representations in violation of 18 U.S.C. § 1001(a)(2) (Count
39); altering, destroying mutilating, or concealing an object in violation of 18 U.S.C.
§ 1512(b)(2)(B) (Count 40); and corruptly altering, destroying, mutilating, or concealing a
document, record or other object in violation of 18 U.S.C. § 1512(c)(1) (Count 41).
1
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Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 2 of 7
On November 10, 2023, this Court Ordered that defendants submit pretrial motions
pursuant to Rule 12 of the Federal Rules of Criminal Procedure on or before February 22, 2024.
Order (Nov. 10, 2023) (ECF No. 215). Following protracted briefing on the necessity of sealing
references to certain discovery materials, see Order at 1 n.1 (Feb. 27, 2024) (ECF No. 338)
(delineating the, “various sealing/redacting issues before the Court”), the Court Ordered that the
defendants submit their pretrial motions in camera to the extent any motions, “discuss[] or attach[]
discovery materials.” Paperless Order (Feb. 20, 2024) (ECF No. 320). Accordingly, on February
22, 2024, several motions to dismiss were filed on the public docket, while additional motions
were submitted in camera to the Court and the Special Counsel’s Office (“SCO”). See Mot. to
Dismiss (Feb. 22, 2024) (ECF No. 323) (Mr. De Oliveira’s motion to dismiss); Notice (Feb. 22,
2024) (ECF No. 328) (summarizing former President Trump’s seven (7) pretrial motions to
dismiss); Notice (March 1, 2024) (ECF No. 359) (summarizing Mr. Nauta’s five (5) pretrial
motions to dismiss). Pursuant to Local Rule 7.1(c) of the Local Rules for the Southern District of
Florida and this Court’s March 5, 2024, Paperless Order (ECF No. 365), on March 7, 2024, the
SCO submitted its oppositions to these thirteen (13) motions. See Notice (March 7, 2024) (ECF
No. 385). Pursuant to this Court’s March 7, 2024, Notice (ECF No. 383), former President Trump
submitted a reply memorandum in support of his Motion to Dismiss the Superseding Indictment
pursuant to the Presidential Records Act (Feb. 22, 2024) (ECF No. 327), on March 13, 2024. (ECF
No. 399).
Also relevant to the instant notice, on March 1, 2024, America First Legal Foundation
(“AFLF”) moved this Court for leave to submit a brief of amicus curiae in support of former
President Trump’s Motion to Dismiss the Superseding Indictment pursuant to the Presidential
Records Act, (ECF No. 360), which this Court granted by Paperless Order on March 6, 2024 (ECF
2
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Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 3 of 7
No. 367). On March 13, 2024, the SCO filed a memorandum in opposition to the amicus curiae
brief. (ECF No. 400).
Absent certain exceptions, the law-of-the-case doctrine generally provides that, “courts are
‘bound by findings of fact and conclusions of law’ previously made in the same
case . . . .’” Rodriguez v. United States, No. 17-CR-157, 2020 U.S. Dist. LEXIS 73450, at *11-12
(N.D. Ga. Feb. 28, 2020) (citations omitted); see also United States v. Stinson, 97 F.3d 466, 469
(11th Cir. 1996) (“[B]oth the district court and the court of appeals are bound by findings of fact
and conclusions of law made by the court of appeals in a prior appeal of the same case unless (1) a
subsequent trial produces substantially different evidence, (2) controlling authority has since made
a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous
and would work manifest injustice.” (citing United States v. Robinson, 690 F.2d 869 (11th
Cir.1982)). Accordingly, as a general matter, the “‘law of the case’ doctrine generally refer to it as
applying to decisions made by a court of appeals in a prior appeal of the same case.” United States
v. Williams, 728 F.2d 1402, 1406 (11th Cir. 1984) (citing Robinson, 690 F.2d at 872.). Although,
“[t]here is some question as to whether the law of the case doctrine applies to conclusions of the
trial court,” Stinson, 97 F.3d at 469, but this Circuit has previously noted that, “the doctrine is
flexible . . . as long as the case remains within the jurisdiction of the district court.” Williams, 728
F.2d at 1406.
Both former President Trump’s Motion to Dismiss (Feb. 22, 2024) (ECF No. 327) and
AFLF’s amicus curiae brief in support thereof (March 1, 2024) (ECF No. 360), argue, inter alia,
that the documents with classification markings that gave rise to the investigation which resulted
in the prosecution of former President Trump and Messrs. Nauta and De Oliveira were designated
by President Trump as “personal” under the PRA when they were taken from the White House to
3
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Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 4 of 7
Mar-a-Lago. See Mot. at 4-5 (Feb. 22, 2024) (ECF No. 327); AFLF Amicus Curiae at 6 (Mar. 1
2024) (ECF No. 360). As a consequence, former President Trump had “authority” to possess the
records and therefore could neither be investigated nor prosecuted for willfully retaining
documents relating to the national defense in violation of 18 U.S.C. § 793(e). See Mot. at 10-13
(Feb. 22, 2024) (ECF No. 327) (“NARA’s purported referral to DOJ prosecutors was improper and
not foreseeable to President Trump given NARA’s historical practices. Because the referral was
improper, there was no basis for the FBI to “predicate” an investigation.”); Mot. at 8 (Feb. 22,
2024) (ECF No. 325) (“[P]residential discretion to designate records as personal under the PRA
adds additional ambiguity [to the meaning of ‘unauthorized possession’ under § 793(e).”).
Should the Court agree with former President Trump that it is precluded from reviewing
then President Trump’s designation of the materials transferred from the White House to Mar-aLago as “personal” under the PRA, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 300301 (D.D.C. 2012) (“The only reference in the entire [PRA] to the designation of records as
personal versus Presidential also calls for the decision to be made by the executive . . . .”), quoted
in Mot. at 5 (Feb. 22, 2024) (ECF No. 327), then the Superseding Indictment on its face fails to
plead an element of the offense under § 793(e) insofar as the indictment fails to plead that the
possession of the documents in question was not “unauthorized.” United States v. Resendiz-Ponce,
127 S. Ct. 782, 788 (2007) (“[There are] two constitutional requirements for an indictment: first,
that it contains the elements of an offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, that it enables him to plead an acquittal or conviction
in bar of future prosecutions for the same offense.” (cleaned up)). Accord United States v. Steele,
147 F.3d 1316, 1320 (11th Cir. 1998) (en banc) (“An indictment is sufficient if it: (1) presents the
essential elements of the charged offense, (2) notifies the accused of the charges to be defended
4
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Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 5 of 7
against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against
double jeopardy for any subsequent prosecution for the same offense.” (cleaned up)).
Not only does the indictment fail to properly plead an offense under § 793(e), but any such
prosecution was foreclosed by virtue of the fact that judicial review of then President Trump’s
designation of the records as “personal” under the PRA is precluded. See Armstrong v. Bush, 924
F.2d 282, 291 (D.C. Cir. 1991) (“We therefore hold that the PRA precludes judicial review of the
President’s recordkeeping practices and decisions.”). Because a prosecution under § 793(e) is
foreclosed, it was improper for the Department to initiate an investigation, see Mot. at 11 (Feb. 22,
2024) (ECF No. 327), and thus the investigation giving rise to the instant prosecution was not an
“official proceeding” and/or “within the jurisdiction of the executive branch” for former President
Trump, as well as Messrs. Nauta and De Oliveira to obstruct. 1 That an “official proceeding” was
obstructed is again an element of the offenses with which President Trump as well as Messrs.
Nauta and De Oliveira were charged and thus, again, these offenses must be dismissed. See
Resendiz-Ponce, 127 S. Ct. at 788; Steele, 147 F.3d at 1320.
***
Because any decision by this Court as to former President Trump would be binding as to
Mr. Nauta, Mr. Nauta respectfully asks the Court to take notice of his joining former President
Trmp’s Motion to Dismiss the Superseding Indictment pursuant to the Presidential Records Act
(“PRA”) (Feb. 22, 2024) (ECF No. 327).
1
Former President Trump as well as Messrs. Nauta and De Oliveira, are also charged with making
false statements in violation of 18 U.S.C. § 1001 (Counts 38, 39, and 42). These charges similarly
require that the allegedly “false” statement be material to the investigation at issue, which they
could not be if no lawful investigation was being pursued. See United States v. Boffil-Rivera, 607
F.3d 736, 741 (11th Cir. 2010) (“It is uncontested that conviction under § 1001 requires that the
statement be ‘material’ to the government inquiry.” (emphasis added)).
5
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Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 6 of 7
Dated: March 15, 2024
Respectfully submitted,
s/ Stanley E. Woodward, Jr.
Stanley E. Woodward, Jr. (pro hac vice)
Brand Woodward Law, LP
400 Fifth Street NW, Suite 350
Washington, DC 20010
202.996.7447 (telephone)
202.996.0113 (facsimile)
stanley@brandwoodwardlaw.com
s/ Sasha Dadan
Sasha Dadan, Esq. (Fla. Bar No. 109069)
Dadan Law Firm, PLLC
201 S. 2nd Street, Suite 202
Fort Pierce, Florida 34950
772.579.2771 (telephone)
772.264.5766 (facsimile)
sasha@dadanlawfirm.com
Counsel for Defendant Waltine Nauta
6
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Case 9:23-cr-80101-AMC Document 403 Entered on FLSD Docket 03/15/2024 Page 7 of 7
CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2024, I electronically submitted the foregoing, via
electronic mail, to counsel of record.
Respectfully submitted,
s/ Sasha Dadan
Sasha Dadan, Esq. (Fl. Bar No. 109069)
Dadan Law Firm, PLLC
201 S. 2nd Street, Suite 202
Fort Pierce, Florida 34950
772.579.2771 (telephone)
772.264.5766 (facsimile)
sasha@dadanlawfirm.com
Counsel for Defendant Waltine Nauta
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