11th US Circuit Court of Appeals’ ruling

A federal appeals court is allowing the Justice Department to continue looking at documents marked as classified that were seized from former President Donald Trump’s Mar-a-Lago resort and home, upending a trial judge’s order over those documents that had blocked federal investigators’ work on them.
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Unit state Court District Court Plaintiff document classifi Date file USCA11 Case
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Unit state Court District Court Plaintiff document classifi Date file USCA11 Case
 
 
 
 
 
 
  
 
 
         [DO NOT PUBLISH] 
In the 
United States Court of Appeals 
For the Eleventh Circuit 
 
____________________ 
No. 22-13005 
____________________ 
 
DONALD J. TRUMP,  
 Plaintiff-Appellee, 
versus 
UNITED STATES OF AMERICA,  
 
 Defendant-Appellant. 
 
____________________ 
Appeal from the United States District Court 
for the Southern District of Florida 
D.C. Docket No. 9:22-cv-81294-AMC 
____________________ 
 
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 1 of 29 
2 
Opinion of the Court 
22-13005 
 
Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges. 
PER CURIAM: 
Following the execution of a search warrant at the residence 
of Plaintiff-Appellee, former President Donald J. Trump, Plaintiff 
moved for the appointment of a special master to review the doc-
uments that Defendant-Appellant United States of America seized.  
The district court granted that motion in substantial part.  Now, 
the United States moves for a partial stay of the district court’s or-
der as it relates to the roughly one-hundred documents bearing 
classification markings.  We decide only the narrow question pre-
sented:  whether the United States has established that it is entitled 
to a stay of the district court’s order, to the extent that it (1) requires 
the government to submit for the special master’s review the doc-
uments with classification markings and (2) enjoins the United 
States from using that subset of documents in a criminal investiga-
tion.  We conclude that it has. 
We stress the limited nature of our review:  this matter 
comes to us on a motion for a partial stay pending appeal.  We can-
not (and do not) decide the merits of this case.  We decide only the 
traditional equitable considerations, including whether the United 
States has shown a substantial likelihood of prevailing on the mer-
its, the harm each party might suffer from a stay, and where the 
public interest lies.   
For the reasons we explain below, we grant the United 
States’s motion for a partial stay pending appeal. 
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Opinion of the Court 
3 
 
I. BACKGROUND 
A. 
Factual Background 
Plaintiff left the White House in January 2021, after serving 
as President of the United States.  Upon leaving office, movers 
transferred boxes of documents to his personal residence in south-
ern Florida.  Doc. No. 1 at 4.  
The record reveals that, throughout 2021 (and consistent 
with its responsibilities under the Presidential Records Act, 44 
U.S.C. §§ 2201–09), the National Archives and Records Administra-
tion sought to obtain records in Plaintiff’s possession.  Doc. No. 48-
1 at 2, 6.   
In response to these requests, in January 2022, Plaintiff trans-
ferred fifteen boxes of documents to the National Archives.  Id.  
The National Archives reviewed the contents of the boxes and 
found inside “newspapers, magazines, printed news articles, pho-
tos, miscellaneous print-outs, notes” but also “presidential corre-
spondence, personal and post-presidential records, and a lot of clas-
sified records.”  Affidavit in Support of an Application Under Rule 
41 for a Warrant to Search and Seize ¶ 24, In re Sealed Search War-
rant, No. 22-MJ-8332 (S.D. Fla. Sept. 12, 2022) (“Warrant Affidavit”) 
(quotation omitted).  Consequently, the National Archives sent a 
referral by email to the Department of Justice on February 9, 2022.  
Id.   
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Opinion of the Court 
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Upon learning about the classified materials, the Depart-
ment sought access to the fifteen boxes in part “so that the FBI and 
others in the Intelligence Community could examine them.”  Doc. 
No. 48-1 at 6.  The National Archives responded by advising Plain-
tiff, on April 12, 2022, that it intended to provide the FBI access to 
the records the week of April 18, 2022.  Id. at 7.  When Plaintiff re-
quested an extension of the production date to April 29, 2022, the 
National Archives held off on sending the documents to the 
FBI.  Id. 
On that date, Plaintiff asked for another extension of time 
and informed the National Archives that, if it declined to grant the 
extension, he would make a protective assertion of executive priv-
ilege over the documents.  Doc. No. 48 at 6.  On May 10, the Na-
tional Archives informed Plaintiff’s representatives that it had de-
cided not to honor Plaintiff’s protective claim of executive privi-
lege, and that it would provide the FBI access to the records as early 
as May 12, 2022.  Id. at 9.  That letter noted that President Biden 
had deferred to the National Archives’s determination that execu-
tive privilege did not apply.  Id. at 7.  Despite this advance warning, 
Plaintiff made no effort to block the FBI’s access to the documents 
at that time.  Doc. No. 48 at 6–7. 
During a preliminary review of the documents between 
May 16–18, 2022, the FBI found 184 documents marked at varying 
levels of classification (including twenty-five documents marked 
top secret).  Id. at 7; Warrant Affidavit ¶ 47.   
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Opinion of the Court 
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The FBI also developed evidence that more boxes contain-
ing classified information remained at Plaintiff’s residence.  Doc. 
No. 48 at 7.  The Department obtained a grand-jury subpoena di-
rected to Plaintiff’s custodian of records, and requested all docu-
ments or writings in Plaintiff’s custody or control bearing classifi-
cation markings.  Doc. No. 48 at 7–8.  Plaintiff’s counsel was served 
with the subpoena on May 11, 2022.  Id. at 8.   
Plaintiff sought (and received) an extension of time to pro-
duce the subpoenaed documents.  Id.  After initially denying the 
request, the government extended the compliance deadline until 
June 7, 2022.  Id.  On June 3, 2022, in response to the subpoena, 
Plaintiff’s representatives produced an envelope containing thirty-
eight such documents.  Warrant Affidavit ¶ 58.  At the same time, 
his representative stated that she was authorized to certify that a 
“diligent search was conducted” and that “[a]ny and all responsive 
documents” accompanied the certification.  Doc. No. 48 at 9.  The 
envelope contained classified documents, including seventeen 
marked top secret, and was double-wrapped in tape, consistent 
with handling procedures for classified documents.  Warrant Affi-
davit ¶¶ 58, 60.  Plaintiff made no claims of privilege with his pro-
duction in response to the subpoena.  Doc. No. 48 at 8. 
Despite Plaintiff’s production in response to the subpoena 
and counsel’s representation that a diligent search had occurred 
and all responsive documents had been produced, the FBI devel-
oped evidence that more classified documents remained at Plain-
tiff’s residence.  Id. at 10.  In August 2022 the Department, through 
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Opinion of the Court 
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an FBI agent’s sworn affidavit, informed a magistrate judge of the 
evidence it had developed, and the magistrate judge agreed that 
probable cause existed that evidence of possible violations of the 
law would be found in Plaintiff’s residence.  Id. at 11; see also War-
rant Affidavit at 1, 32.  Based on this evidence, the magistrate judge 
issued a search warrant for Plaintiff’s residence.  When the FBI ex-
ecuted the search warrant, it seized thirty-three items of evidence 
(mostly boxes) containing approximately 11,000 documents and 
1,800 other items.  Doc. No. 48 at 4, 12–13.  Among the boxes, thir-
teen contained documents with classification markings, and three 
classified documents were found in Plaintiff’s desks.  All told, the 
search uncovered over one-hundred documents marked confiden-
tial, secret, or top secret.  Id. at 13. 
In accordance with the protocol that the magistrate judge 
had approved in the search warrant, the Department directed a 
“Privilege Review Team”—composed of agents not otherwise par-
ticipating in the investigation—to review certain seized documents 
for attorney-client privilege.  Doc. No. 48 at 14; see Warrant Affi-
davit ¶¶ 81–84.   
Based on its review, the Privilege Review Team identified 
(and segregated) an initial subset of about 520 pages (not docu-
ments) that might contain privileged material. Doc. No. 64 at 14.  
Within the remaining documents, members of the investigative 
team found at least two instances of potentially privileged material, 
which they delivered to the Privilege Review Team.  Id. at 15. 
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Opinion of the Court 
7 
 
B. 
Procedural History 
Two weeks after the execution of the search warrant, Plain-
tiff filed a motion in the district court asking for it to (1) appoint a 
special master, (2) enjoin further review of the seized materials un-
til a special master was appointed, (3) require the United States to 
supply a more detailed Receipt for Property, and (4) require the 
United States to return any item seized that was not within the 
scope of the search warrant.  Doc. No. 28 at 10.   
Regarding jurisdiction, among other bases, Plaintiff asserted 
that the district court could appoint a special master under its “su-
pervisory authority” and its “inherent power” and could enjoin the 
government’s review under its “equitable jurisdiction.”  Doc. No. 
28 at 5–6. 
The United States made three primary arguments in oppo-
sition.  First, the United States argued that Plaintiff lacked Fourth 
Amendment “standing” to seek relief because he did not have a 
possessory interest in the seized property.  In support of this posi-
tion, the United States asserted that the seized records were Presi-
dential records, which properly belonged to the people of the 
United States, not to Plaintiff.   
Second, as to the appointment of a special master, the 
United States contended that (1) appointment of a special master 
was the exception, not the rule; (2) a special master was neither 
necessary nor appropriate to address whether certain documents 
were subject to executive privilege because Plaintiff could not 
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Opinion of the Court 
22-13005 
 
assert executive privilege against the Executive Branch; (3) even if 
he could, the privilege would yield to the United States’s need to 
investigate a possible crime and the United States’s compelling in-
terest in sensitive and highly classified documents; (4) appointment 
of a special master would be inconsistent with equitable principles 
given that Plaintiff had not, as required, turned the records over to 
Archives in the first instance; and (5) the case did not involve com-
plex or voluminous records, so a privilege filter team was appropri-
ate.   
Third, as to injunctive relief, the United States argued that 
(1) Plaintiff had waited too long to seek relief, and the Depart-
ment’s review of the documents, which Plaintiff sought to avoid, 
had already occurred; (2) Plaintiff was not likely to succeed on the 
merits of his claims of executive privilege because he did not have 
any cognizable claim of executive privilege over the documents; 
and (3) the harm to the United States—in the delay in its investiga-
tion—far outweighed any injury to Plaintiff because of the risk to 
national security. 
Plaintiff replied that he had Fourth Amendment standing be-
cause the characterization of the documents (whether personal or 
Presidential records) went to the merits of his claim—not his stand-
ing to raise it.  While Plaintiff appears to view appointment of a 
special master as a predicate to filing a motion under Rule 41(g) 
(which allows a person to seek return of seized items), he dis-
claimed reliance on that Rule for the time being, saying that he 
“h[ad] not yet filed a Rule 41(g) motion, and [so] the standard for 
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22-13005  
Opinion of the Court 
9 
 
relief under that rule [wa]s not relevant to the issue of whether the 
Court should appoint a Special Master.”  Doc. No. 58 at 6. 
 
The district court granted Plaintiff’s motion in part.  As to 
jurisdiction, the district court first concluded that it enjoyed equi-
table jurisdiction because Plaintiff had sought the return of his 
property under Rule 41(g), which created a suit in equity.1  Because 
its jurisdiction was equitable, the district court explained, it turned 
to the Richey factors to decide whether to exercise equitable juris-
diction.2   
For the first Richey factor—callous disregard for Plaintiff’s 
constitutional rights—the district court found no evidence that the 
 
1 As we have noted, Plaintiff disclaimed having already filed a Rule 41(g) mo-
tion in his initial reply to the government.  Doc. No. 58 at 6.  Yet in the same 
filing, Plaintiff stated that he “intends” to assert that records were seized in 
violation of the Fourth Amendment and the Presidential Records Act and are 
“thus subject to return” under Rule 41(g).  Id. at 8; see also id. at 18 (“Rule 41 
exists for a reason, and the Movant respectfully asks that this Court ensure 
enough fairness and transparency, even if accompanied by sealing orders, to 
allow Movant to legitimately and fulsomely investigate and pursue relief un-
der that Rule.”).  The district court resolved this situation by classifying Plain-
tiff’s initial filing as a “hybrid motion” that seeks “ultimately the return of the 
seized property under Rule 41(g).” Doc. No. 64 at 6–7.  
2 Richey v. Smith, 515 F.2d 1239, 1243–44 (5th Cir. 1975) (outlining the stand-
ard for entertaining a pre-indictment motion for the return of property under 
Rule 41(g)).  Because the Fifth Circuit issued this decision before the close of 
business on September 30, 1981, it is binding precedent in the Eleventh Cir-
cuit.  See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en 
banc). 
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United States had engaged in that type of behavior.  As to the sec-
ond factor—Plaintiff’s interest in and need for the seized prop-
erty—the district court determined that Plaintiff had an interest in 
at least some of the documents, like his medical documents, tax 
correspondence, and accounting information.  But it made no find-
ing that Plaintiff had a need for the classified documents.  The third 
factor, the district court reasoned, weighed in favor of exercising 
jurisdiction because, in its view, Plaintiff suffered a likelihood of ir-
reparable injury in the form of improper disclosure of sensitive in-
formation to the public and the threat of future prosecution and 
the associated stigma.  Finally, the district court concluded that 
Plaintiff had no alternative remedy at law because otherwise, the 
United States might just retain the property indefinitely.  Based on 
the four Richey factors, the district court agreed to exercise equita-
ble jurisdiction. 
 
Next, the district court held that Plaintiff had Fourth 
Amendment standing to seek a special master because he poten-
tially had a possessory interest in the records.  The district court 
reached this determination because, the court said, it was still un-
determined whether the seized records were personal or Presiden-
tial.   
 
On the merits, the district court deemed a special master 
warranted, given that (1) the United States had found at least two 
instances in which the Privilege Review Team reported that mem-
bers of the investigative team had been exposed to privileged ma-
terial, and (2) a special master might be perceived to be more 
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Opinion of the Court 
11 
 
impartial than the Privilege Review Team.  As to executive privi-
lege, the district court posited that Plaintiff might be able to assert 
executive privilege against the current President.  And, the court 
continued, the fact that the Privilege Review Team hadn’t screened 
for executive privilege further militated towards appointment of a 
special master.   
 
Finally, the district court enjoined the United States from 
further review and use of the seized materials for criminal investi-
gative purposes—but allowed it to review and use the materials for 
the “purposes of intelligence classification and national security as-
sessments.” 
 
After the district court issued its order, the United States 
moved for a partial stay of that order pending appeal as to the lim-
ited set of documents (just over one hundred) that were marked as 
classified.  The United States argued that (1) Plaintiff  did not have 
a possessory interest in the classified documents (because they be-
longed to the United States, not to him); (2) such documents could 
not possibly contain attorney-client privileged information; and (3) 
even if Plaintiff could exert executive privilege over some of the 
records, that privilege would be overcome by the United States’s 
demonstrated, specific need to review the classified documents to 
see if and how much of a risk to national security existed.   
As to executive privilege, the United States noted, Plaintiff 
had not asserted executive privilege in response to the May sub-
poena; instead, he had produced documents and his custodian had 
certified that he had produced all responsive documents, which 
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meant that he could not assert executive privilege over documents 
that he was supposed to have already produced (but did not).  The 
United States argued that it needed a stay of the district court’s in-
junction against the criminal investigation; the criminal investiga-
tion and national security were intertwined, the government em-
phasized, so the district court’s order prevented the United States 
from effectively reviewing the documents for national-security 
risk.   
In support of that position, the United States attached a dec-
laration from Alan E. Kohler, Jr., the Assistant Director of the 
Counterintelligence Division of the FBI.  Kohler’s declaration ex-
plained that “since the 9/11 attacks, the FBI has integrated its intel-
ligence and law enforcement functions when it exercises its na-
tional security mission.”  Declaration of Alan E. Kohler, Jr., Asst. 
Dir., Counterintelligence Div., FBI (“Kohler Decl.”), Doc. No. 69-
1 ¶ 8.  Kohler explained that, as part of a classification review to 
assess the existence and extent of damage to the national-security 
interests of the United States from disclosure of the documents 
marked classified, the FBI needed to access evidence and dissemi-
nate it to other intelligence agencies to assess potential harm.  See 
id. ¶ 7.  Those assessments, Kohler continued, would “necessarily” 
inform the FBI’s criminal investigation.  Id. ¶ 9.  For example, if an 
Intelligence agency were to obtain intelligence indicating that a 
classified document in the seized materials might have been com-
promised, the FBI would be responsible for taking some of the nec-
essary steps to evaluate that risk.  Id.  Plus, Kohler attested, “the 
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Opinion of the Court 
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FBI is the only [Intelligence Community] element with a full suite 
of authorities and tools to investigate and recover any improperly 
retained and stored classified information in the United States.”  Id. 
Not only that, but as a practical matter, Kohler explained, 
“the same senior [Department of Justice] and FBI officials, such as 
[Kohler], are ultimately responsible for supervising the criminal in-
vestigation and for ensuring that the FBI is coordinating appropri-
ately with the rest of the [Intelligence Community] on its classifi-
cation review and assessment.”  Id. ¶ 10. 
 
Plaintiff responded that “there still remains a disagreement 
as to the classification status of the documents.”  He emphasized 
that special-master review was temporary and asserted that he had 
a statutory right to access the documents.   
 
On September 15, the district court denied a stay pending 
appeal and appointed a special master.  Doc. No. 89.  In explaining 
the basis for its decision, the district court first reasoned that it was 
not prepared to accept, without further review by a special master, 
that “approximately 100 documents isolated by the Government 
. . . [were] classified government records.”  Doc. No. 89 at 3.  Sec-
ond, the district court declined to accept the United States’s argu-
ment that it was impossible that Plaintiff could assert a privilege for 
some of the documents bearing classification markings.  Doc. No. 
89 at 3–4. 
 
The next day, the United States moved in this Court for a 
partial stay pending appeal, seeking to stay the district court’s 
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orders with respect to only the roughly one-hundred documents 
bearing classification marks.  Based on the United States’s conten-
tion that these documents and the corresponding criminal investi-
gation are “essential to the government’s effort to identify and mit-
igate potential national-security risks,” the United States asked this 
Court to “act on [its] motion as soon as practicable.” 
 
We directed Plaintiff to file an expedited response to the 
United States’s motion for partial stay.  Plaintiff responded that (1) 
we lack jurisdiction over the order appointing a special master; (2) 
he has Rule 41(g) standing; (3) that the United States has not proved 
that the documents that are marked “classified” are actually “clas-
sified”; and (4) the district court properly balanced the harms in en-
joining the United States. 
 
The United States replied that (1) Plaintiff’s jurisdictional ar-
gument lacks merit; (2) Plaintiff lacks Rule 41(g) standing as it per-
tains to the classified documents; (3) The records bearing classifica-
tion markings have no plausible case for being privileged, and even 
if Plaintiff had claimed to have declassified them, the United States 
would still need to assess them and (4) without a stay of the district 
court’s order as it regards the classified documents, the govern-
ment and the public will be irreparably harmed. 
We have carefully reviewed the parties’ briefs and the rec-
ord. 
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Opinion of the Court 
15 
 
II. 
JURISDICTION 
We have appellate 
jurisdiction through 28 U.S.C. 
§ 1292(a)(1), which provides courts of appeals with jurisdiction 
over interlocutory orders granting injunctions.3  Ala. v. U.S. Army 
Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005). 
III. DISCUSSION 
When deciding whether to grant a stay pending appeal, we 
evaluate four factors:   “(1) whether the stay applicant has made a 
strong showing that he is likely to succeed on the merits; (2) 
whether the applicant will be irreparably injured absent a stay; (3) 
whether issuance of the stay will substantially injure the other par-
ties interested in the proceeding; and (4) where the public interest 
lies.”  Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. 
 
3 Plaintiff argues that we “lack[] jurisdiction to review the special master’s au-
thority.”  But our order does not address the special master’s authority; it ad-
dresses the district court’s orders as they require the United States to act and 
to refrain from acting.  Nevertheless, we note that the district court “en-
join[ed] the Government from reviewing and using the seized materials for 
investigative purposes pending completion of the special master’s review or 
further Court order,” “in natural conjunction with [the appointment of the 
special master].”  Doc. No. 64 at 1.  And our pendent jurisdiction allows us to 
address an otherwise nonappealable order when it is inextricably intertwined 
with an appealable decision, or when review of an otherwise-nonappealable 
order “is necessary to ensure meaningful review” of an appealable decision.  
Jones v. Fransen, 857 F.3d 843, 850 (11th Cir. 2017) (citation omitted). 
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Braunskill, 481 U.S. 770, 776 (1987)).  After considering the four fac-
tors here, we conclude that the United States is entitled to a stay.   
A. The United States has established a substantial likelihood of 
success on the merits. 
The United States argues that the district court likely erred 
in exercising its jurisdiction to enjoin the United States’s use of the 
classified records in its criminal investigation and to require the 
United States to submit the marked classified documents to a spe-
cial master for review.  We agree.   
Our binding precedent states that when a person seeks re-
turn of seized property in pre-indictment cases, those actions “are 
governed by equitable principles, whether viewed as based on 
[Federal Rule of Criminal Procedure] 41[(g)] or on the general eq-
uitable jurisdiction of the federal courts.”  Richey v. Smith, 515 F.2d 
1239, 1243 (5th Cir. 1975).  Here, while Plaintiff disclaimed that his 
motion was for return of property as specified in Rule 41(g), he as-
serted that equitable jurisdiction existed.  And the district court re-
lied on both Rule 41(g) and equitable jurisdiction in its orders.  Doc. 
No. 64 at 8–12.  Either way, Richey teaches that equitable principles 
control.   
Whether a court should exercise its equitable jurisdiction in 
this context “is subject to the sound discretion of the district court.”  
Richey, 515 F.2d at 1243.  But that discretion is not boundless.  The 
factors a court should consider when deciding whether to exercise 
jurisdiction include (1) whether the government “displayed a 
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17 
 
callous disregard for . . . constitutional rights” in seizing the items 
at issue; (2) “whether the plaintiff has an individual interest in and 
need for the material whose return he seeks;” (3) “whether the 
plaintiff would be irreparably injured by denial of the return of the 
property;” and (4) “whether the plaintiff has an adequate remedy 
at law for the redress of his grievance.”  Id. at 1243–44 (footnotes 
and quotation omitted).  We consider each in turn. 
We begin, as the district court did, with “callous disregard,” 
which is the “foremost consideration” in determining whether a 
court should exercise its equitable jurisdiction.  United States v. 
Chapman, 559 F.2d 402, 406 (5th Cir. 1977).  Indeed, our precedent 
emphasizes the “indispensability of an accurate allegation of cal-
lous disregard.”  Id. (alteration accepted and quotation omitted). 
Here, the district court concluded that Plaintiff did not show 
that the United States acted in callous disregard of his constitu-
tional rights.  Doc. No. 64 at 9.  No party contests the district court’s 
finding in this regard.  The absence of this “indispensab[le]” factor 
in the Richey analysis is reason enough to conclude that the district 
court abused its discretion in exercising equitable jurisdiction here.  
Chapman, 559 F.2d at 406.  But for the sake of completeness, we 
consider the remaining factors. 
The second Richey factor considers “whether the plaintiff 
has an individual interest in and need for the material whose return 
he seeks.”  515 F.2d at 1243.  The district court concluded that Plain-
tiff had an interest in some of the seized material because it in-
cluded “medical documents, correspondence related to taxes, and 
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accounting information.”  Doc. No. 64 at 9.  But none of those con-
cerns apply to the roughly one-hundred classified documents at is-
sue here.  And the district court made no mention in its analysis of 
this factor as to why or how Plaintiff might have an individual in-
terest in or need for the classified documents.   
For our part, we cannot discern why Plaintiff would have an 
individual interest in or need for any of the one-hundred docu-
ments with classification markings. Classified documents are 
marked to show they are classified, for instance, with their classifi-
cation level.  Classified National Security Information, Exec. Order 
No. 13,526, § 1.6, 3 C.F.R. 298, 301 (2009 Comp.), reprinted in 50 
U.S.C. § 3161 app. at 290–301.  They are “owned by, produced by 
or for, or . . . under the control of the United States Government.”  
Id. § 1.1.  And they include information the “unauthorized disclo-
sure [of which] could reasonably be expected to cause identifiable 
or describable damage to the national security.”  Id. § 1.4.  For this 
reason, a person may have access to classified information only if, 
among other requirements, he “has a need-to-know the infor-
mation.”  Id. § 4.1(a)(3).  This requirement pertains equally to for-
mer Presidents, unless the current administration, in its discretion, 
chooses to waive that requirement.  Id. § 4.4(3).   
Plaintiff has not even attempted to show that he has a need 
to know the information contained in the classified documents.  
Nor has he established that the current administration has waived 
that requirement for these documents.  And even if he had, that, in 
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Opinion of the Court 
19 
 
and of itself, would not explain why Plaintiff has an individual in-
terest in the classified documents.       
Plaintiff suggests that he may have declassified these docu-
ments when he was President.  But the record contains no evidence 
that any of these records were declassified.  And before the special 
master, Plaintiff resisted providing any evidence that he had declas-
sified any of these documents.  See Doc. No. 97 at 2–3., Sept. 19, 
2022, letter from James M. Trusty, et al., to Special Master Ray-
mond J. Dearie, at 2–3.  In any event, at least for these purposes, 
the declassification argument is a red herring because declassifying 
an official document would not change its content or render it per-
sonal.  So even if we assumed that Plaintiff did declassify some or 
all of the documents, that would not explain why he has a personal 
interest in them. 
This factor—the Plaintiff’s personal interest (or lack thereof) 
in the documents—also weighs against exercising jurisdiction. 
Third, Richey asks “whether the plaintiff would be irrepara-
bly injured by denial of the return of the property.”  515 F.2d at 
1243.  The district court identified potential harm that could arise 
based on (1) improper disclosure of “sensitive information” to the 
public; (2) the United States’s retention and use of privileged mate-
rials; and (3) the stigma associated with future prosecution.  See 
Doc. No. 64 at 9–10. 
We cannot conclude that Plaintiff would be irreparably in-
jured by a stay regarding the documents marked classified.  Plaintiff 
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20 
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suggests that he could be harmed by the disclosure of sensitive in-
formation.  Doc. No. 84 at 8.  But permitting the United States to 
retain the documents does not suggest that they will be released; 
indeed, a purpose of the United States’s efforts in investigating the 
recovered classified documents is to limit unauthorized disclosure 
of the information they contain.  Not only that, but any authorized 
official who makes an improper disclosure risks her own criminal 
liability.  See, e.g., 18 U.S.C. § 798.  We also doubt that Plaintiff 
risks irreparable injury in the form of disclosure of privileged infor-
mation; he has not, for example, asserted attorney-client privilege 
over any of the classified documents.   
The remaining potential injury identified by the district 
court is “the threat of future prosecution and the serious, often in-
delible stigma associated therewith.”  Doc. No. 64 at 10.  No doubt 
the threat of prosecution can weigh heavily on the mind of some-
one under investigation.  But without diminishing the seriousness 
of that burden, “if the mere threat of prosecution were allowed to 
constitute irreparable harm . . . every potential defendant could 
point to the same harm and invoke the equitable powers of the dis-
trict court.”  United States v. Search of Law Office, Residence, and 
Storage Unit Alan Brown, 341 F.3d 404, 415 (5th Cir. 2003) (quota-
tion omitted).  If this concern were sufficient to constitute irrepa-
rable harm, courts’ “exercise of [their] equitable jurisdiction would 
not be extraordinary, but instead quite ordinary.”  Id.   
“It is a familiar rule that courts of equity do not ordinarily 
restrain criminal prosecutions.”  Douglas v. City of Jeannette, 319 
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Opinion of the Court 
21 
 
U.S. 157, 163 (1943); see also Deaver v. Seymour, 822 F.2d 66, 71 
(D.C. Cir. 1987) (Silberman, J.) (rejecting civil suit to enjoin gov-
ernment from indicting plaintiff and explaining that “[p]rospective 
defendants cannot, by bringing ancillary equitable proceedings, cir-
cumvent federal criminal procedure.”); United States v. McIntosh, 
833 F.3d 1163, 1172 (9th Cir. 2016) (“In almost all federal criminal 
prosecutions, injunctive relief . . . will not be appropriate.  Federal 
courts traditionally have refused, except in rare instances, to enjoin 
federal criminal prosecutions.”).4   
In sum, the third Richey factor also weighs against exercis-
ing equitable jurisdiction. 
Finally, Richey asks “whether the plaintiff has an adequate 
remedy at law for the redress of his grievance.”  515 F.2d at 1243–
44.  The district court found that this factor weighed in favor of 
 
4 The Supreme Court has recognized an exception to this general rule— 
where “the threats to enforce the statutes against appellants are not made with 
any expectation of securing valid convictions, but rather are part of a plan to 
employ arrests, seizures, and threats of prosecution under color of the statutes 
to harass appellants.”  Younger v. Harris, 401 U.S. 37, 48 (1971) (citing Dom-
browski v. Pfister, 380 U.S. 479, 482 (1965)).  Plaintiff has not made such an 
allegation here, nor do we see any evidence in the record to support one.  And 
though Younger involved a state prosecution, many courts have applied the 
basic principles in Younger  to federal prosecutions.  See, e.g., Deaver, 822 F.2d 
at 69–70 (“[I]n no case that we have been able to discover has a federal court 
enjoined a federal prosecutor’s investigation or presentment of an indictment. 
. . . Because these defendants are already guaranteed access to a federal court, 
it is not surprising that subjects of federal investigation have never gained in-
junctive relief against federal prosecutors.”). 
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Plaintiff because otherwise, “Plaintiff would have no legal means 
of seeking the return of his property for the time being.”  Doc. No. 
64 at 10.  But Plaintiff has been clear that he is not seeking the re-
turn of the classified documents.  See Doc. No. 58 at 6 (“In general, 
the Government’s argument is premature.  Movant has not yet 
filed a Rule 41(g) motion, and the standard for relief under that rule 
is not relevant to the issue of whether the Court should appoint a 
Special Master.”).  And even if he were, he has not identified any 
reason that he is entitled to them. 
This factor then, also weighs against exercising equitable ju-
risdiction. 
 
In sum, none of the Richey factors favor exercising equitable 
jurisdiction over this case.  Consequently, the United States is sub-
stantially likely to succeed in showing that the district court abused 
its discretion in exercising jurisdiction over Plaintiff’s motion as it 
concerns the classified documents.5 
 
5 The district court referred fleetingly to invoking its “inherent supervisory 
authority,” though it is unclear whether it utilized this authority with respect 
to the orders at issue in this appeal.  Doc. No. 64 at 1, 7 n.8.  Either way, the 
court’s exercise of its inherent authority is subject to two limits: (1) it “must 
be a reasonable response to the problems and needs confronting the court’s 
fair administration of justice,” and (2) it “cannot be contrary to any express 
grant of or limitation on the district court’s power contained in a rule or stat-
ute.”  Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (quotation omitted).  The 
district court did not explain why the exercise of its inherent authority con-
cerning the documents with classified markings would fall within these 
 
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Opinion of the Court 
23 
 
B. The United States would suffer irreparable injury in the ab-
sence of a stay. 
We next consider the second Nken factor: whether the 
United States would suffer irreparable injury in the absence of a 
stay.  See 556 U.S. at 426.  We conclude that it would. 
The motion for a partial stay distinguishes the roughly one-
hundred seized records with classification markings from the re-
maining seized materials without any such markings.  Because the 
classified nature of these documents bears on our analysis, we 
begin with a (brief) overview of the United States’s system of clas-
sification. 
Since World War I, the Executive Branch “has engaged in 
efforts to protect national security information by means of a clas-
sification system graded according to sensitivity.”  Dep’t of the 
Navy v. Egan, 484 U.S. 518, 527 (1988).  In practice, Presidents have 
often used Executive Orders to “protect sensitive information and 
to ensure its proper classification throughout the Executive 
Branch.”  Id. at 528.6  The current operative classification protocols 
 
bounds, other than its reliance on its Richey-factor analysis.  We have already 
explained why that analysis was in error. 
6 For its part, Congress has recognized the importance of a national security 
classification system and has directed that “the President shall, by Executive 
order or regulation, establish procedures to govern access to classified infor-
mation which shall be binding upon all departments, agencies, and offices of 
the executive branch of Government.” 50 U.S.C. § 3161. 
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are described in Executive Order 13,526.  Exec. Order No. 13,526, 
3 C.F.R. 298.  
Under Executive Order 13,526, there are three classification 
levels: Confidential, Secret, and Top Secret.  Id. § 1.2.  The standard 
for the level at which particular information should be classified 
turns on whether “the unauthorized disclosure” of the information 
“reasonably could be expected to cause” either “damage” (Confi-
dential), “serious damage” (Secret), or “exceptionally grave dam-
age” (Top Secret) to national security.  Id.  Once so designated, 
classified materials may remain classified for up to ten years, unless 
the original classification authority determines that the duration 
should be extended up to twenty-five years.  Id. § 1.5.   
Executive Order 13,526 also sets forth how documents can 
be declassified.  In general, information can be declassified or 
downgraded by the official who authorized the original classifica-
tion, her successor, her supervisor, or other officials with express 
declassification authority.  Id. § 3.1(b).  Classified records are also 
subject to automatic declassification if they are more than twenty-
five years old and have permanent historical value, unless they fall 
into certain enumerated categories such that their declassification 
could harm national security.  Id. § 3.3.  For example, information 
that could reveal the identity of a confidential human source or that 
relates to weapons of mass destruction is exempted from automatic 
disclosure.  See id.  
Returning to the case before us, under the terms of the dis-
trict court’s injunction, the Office of the Director of National 
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Opinion of the Court 
25 
 
Intelligence is permitted to continue its “classification review 
and/or intelligence assessment” to assess “the potential risk to na-
tional security that would result from disclosure of the seized ma-
terials.”  Doc. No. 64 at 1–2, 6.  But the United States is enjoined 
“from further review and use of any of the materials seized from 
Plaintiff’s residence on August 8, 2022, for criminal investigative 
purposes pending resolution of the special master’s review pro-
cess.”  Id. 23–24.   
This distinction is untenable.  Through Kohler’s declaration, 
the United States has sufficiently explained how and why its na-
tional-security review is inextricably intertwined with its criminal 
investigation.  When matters of national security are involved, we 
“must accord substantial weight to an agency’s affidavit.”  See 
Broward Bulldog, Inc. v. U.S. Dep’t of Justice, 939 F.3d 1164, 1182 
(11th Cir. 2019) (quoting Am. Civil Liberties Union v. U.S. Dep’t of 
Def., 628 F.3d 612, 619 (D.C. Cir. 2011)).   
The engrained principle that “courts must exercise the tradi-
tional reluctance to intrude upon the authority of the Executive in 
military and national security affairs” guides our review of the 
United States’s proffered national-security concerns.  United States 
v. Zubaydah, 142 S. Ct. 959, 967 (2022) (alteration and citation 
omitted).  No party has offered anything beyond speculation to un-
dermine the United States’s representation—supported by sworn 
testimony—that findings from the criminal investigation may be 
critical to its national-security review.  See Kohler Decl. ¶ 9.  Ac-
cording to the United States, the criminal investigation will seek to 
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determine, among other things, the identity of anyone who ac-
cessed the classified materials; whether any particular classified ma-
terials were compromised; and whether additional classified mate-
rials may be unaccounted for.  As Plaintiff acknowledges, back-
wards-looking inquiries are the domain of the criminal investiga-
tors.  Doc. No. 84 at 15–16.  It would be difficult, if not impossible, 
for the United States to answer these critical questions if its criminal 
investigators are not permitted to review the seized classified ma-
terials.   
Precisely because the United States’s criminal investigation 
is focused on past events, Plaintiff responds that the United States 
is not irreparably harmed because it can be distinguished from pro-
spective national-security review.  We are not persuaded.   
The United States explains that there are circumstances 
where its national-security assessment of the classified materials is 
inextricably intertwined with the criminal investigation.  Plaintiff 
acknowledges that the two “may relate,” but contends that any ten-
sion between these functions can be resolved because the district 
court’s order permits national-security assessments that “truly are, 
in fact, inextricable from criminal investigative use of the seized 
materials.”  But discerning when an assessment becomes “truly” 
inextricable is far more easily said than done.  Under that theory, 
officials charged with overseeing both national security and crimi-
nal investigations would risk contempt of court, undoubtedly 
chilling their national-security duties.  Thus, an injunction delaying 
(or perhaps preventing) the United States’s criminal investigation 
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Opinion of the Court 
27 
 
from using classified materials risks imposing real and significant 
harm on the United States and the public.   
The United States also argues that allowing the special mas-
ter and Plaintiff’s counsel to examine the classified records would 
separately impose irreparable harm.  We agree.  The Supreme 
Court has recognized that for reasons “too obvious to call for en-
larged discussion, the protection of classified information must be 
committed to the broad discretion of the agency responsible, and 
this must include broad discretion to determine who may have ac-
cess to it.”  Egan, 484 U.S. at 529 (quotation omitted).  As a result, 
courts should order review of such materials in only the most ex-
traordinary circumstances.  The record does not allow for the con-
clusion that this is such a circumstance. 
In sum, given the long-recognized “compelling interest in 
protecting . . . the secrecy of information important to our national 
security,” Snepp v. United States, 444 U.S. 507, 509 n.3 (1980), we 
conclude that the United States would suffer irreparable harm from 
the district court’s restrictions on its access to this narrow—and po-
tentially critical—set of materials, as well as the court’s require-
ment that the United States submit the classified records to the spe-
cial master for review. 
C. Plaintiff has not shown that he will suffer a substantial injury 
as a result of the limited stay. 
We next turn to the third Nken factor, “whether issuance of 
the stay will substantially injure the other parties interested in the 
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proceeding.”  556 U.S. at 426.  Here, we analyze whether Plaintiff 
would be “substantially injure[d]” by a stay.  Largely for reasons 
we have already discussed, we conclude that he would not. 
First, as we have explained, Plaintiff does not have a posses-
sory interest in the documents at issue, so he does not suffer a cog-
nizable harm if the United States reviews documents he neither 
owns nor has a personal interest in. 
Second, we find unpersuasive Plaintiff’s insistence that he 
would be harmed by a criminal investigation.  “Bearing the discom-
fiture and cost of a prosecution for crime even by an innocent per-
son is one of the painful obligations of citizenship.”  Cobbledick v. 
United States, 309 U.S. 323, 325 (1940). 
Third, because of the nature of the classified materials at is-
sue here and based on the record, we have no reason to expect that 
the United States’s use of these records imposes the risk of disclo-
sure to the United States of Plaintiff’s privileged information. 
Given the limited scope of the stay—applying to only ap-
proximately one-hundred classified documents—we conclude that 
Plaintiff has not shown he will be substantially injured by a stay. 
D. The public interest favors a stay. 
We now come to the fourth and final Nken factor: “where 
the public interest lies.”  556 U.S. at 426.  The documents at issue 
contain information “the unauthorized disclosure of which reason-
ably could be expected to cause exceptionally grave damage to the 
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Opinion of the Court 
29 
 
national security.”  Exec. Order No. 13,526, § 1.2(a)(1), 3 C.F.R. 
298.  It is self-evident that the public has a strong interest in ensur-
ing that the storage of the classified records did not result in “ex-
ceptionally grave damage to the national security.”  Ascertaining 
that necessarily involves reviewing the documents, determining 
who had access to them and when, and deciding which (if any) 
sources or methods are compromised.  See Kohler Decl. ¶¶ 6–9.  
For these reasons, we conclude that the public interest favors a 
stay. 
IV. CONCLUSION 
 
For the reasons we have explained, we GRANT the stay 
pending appeal.  The district court order is STAYED to the extent 
it enjoins the government’s use of the classified documents and re-
quires the government to submit the classified documents to the 
special master for review. 
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