Finally, Plaintiff himself declined to assert any claim of executive privilege over the
classified records at the point when it would have been appropriate to do so. On May 11,
2022, Plaintiff’s custodian of records was served with a grand jury subpoena seeking “[a]ny
and all documents or writings in the custody or control of Donald J. Trump and/or the Office
of Donald J. Trump bearing classification markings.” D.E. 48 Attachment C.
To the extent
that Plaintiff believed that any such records could be subject to a valid assertion of executive
privilege, he should have advised the government of such a claim at that time and could have
attempted to pursue such a claim through a motion to quash. But despite having several weeks
to respond to the subpoena, Plaintiff did not do so. Instead, on June 3, 2022, Plaintiff’s
counsel produced a set of classified records to the government, and Plaintiff’s custodian
certified that “[a]ny and all responsive documents” had been produced after a “diligent
search.” D.E. 48 Attachment E. Plaintiff cannot now maintain—following the government’s
seizure of additional classified records that Plaintiff failed to produce—that classified records
obtained in the search, which were responsive to the grand jury subpoena, are shielded from
the government’s review by executive privilege. And his failure to raise any such claim in
response to the subpoena both undercuts his entitlement to equitable relief and further
underscores that no plausible claim can be made now.