Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Case No. 1:23-cr-00257-TSC

DONALD J. TRUMP,

Defendant.

PRESIDENT TRUMP’S OPPOSED MOTION

TO STAY PROCEEDINGS PENDING APPEAL

President Donald J. Trump respectfully submits this motion for an order enforcing the

automatic stay of all district court proceedings in this case pending the final resolution of his

recently filed appeal from the Court’s December 1, 2023 rulings on, inter alia, Presidential

immunity and double jeopardy. Docs. 171, 172. The filing of President Trump’s notice of appeal

has deprived this Court of jurisdiction over this case in its entirety pending resolution of the appeal.

Coinbase, Inc. v. Bielski, 599 U.S. 736, 738 (2023). Therefore, a stay of all further proceedings is

mandatory and automatic. Id.

Moreover, last week in Blassingame v. Trump, No. 22-5069, 2023 WL 8291481, at *22

(D.C. Cir. Dec. 1, 2023), the D.C. Circuit made clear that official-immunity issues must be resolved

prior to litigation and discovery on the merits. Thus, in addition to lack of jurisdiction,

Blassingame requires the Court to stay all proceedings in this matter pending appeal, including,

but not limited to, pretrial motions, defense disclosures relating to trial defenses and evidence,

CIPA hearings, and jury selection. As a result of these authorities, all current deadlines must be

held in abeyance until, at minimum, this motion is resolved. President Trump will proceed based

on that understanding and the authorities set forth herein absent further order of the Court.

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PROCEDURAL BACKGROUND

On October 5, 2023, President Trump filed a motion to dismiss the indictment on grounds

of Presidential immunity. Doc. 74. On October 23, 2023, President Trump filed a motion to

dismiss the indictment on constitutional grounds, including claims based on principles of double

jeopardy and the Impeachment Judgment Clause. Doc. 113. On December 1, 2023, the Court

issued a memorandum opinion and order denying both motions. Docs. 171, 172. The Court

incorrectly denied President Trump’s claim of Presidential immunity on the ground that such

immunity does not extend to federal criminal prosecution for a President’s official acts. Id. at 6-

31. The Court denied President Trump’s double jeopardy claim on the ground that “neither

traditional double jeopardy principles nor the Impeachment Judgment Clause provide that a

prosecution following impeachment acquittal violates double jeopardy.” Id. at 38-44.

On December 7, 2023, President Trump filed a timely notice of appeal of this decision.

Doc. 177.

ARGUMENT

I. Proceedings in this Court Are Automatically Stayed Pending Appeal of the Court’s
Decisions on Presidential Immunity and Double Jeopardy.

The Coinbase and Blassingame decisions illustrate that proceedings in this Court must be

stayed pending the resolution of President Trump’s appeal of the Court’s order denying his motions

to dismiss, including on grounds of Presidential immunity and double jeopardy principles. Docs.

171, 172. This stay is jurisdictional, mandatory, and automatic.

In Coinbase, the Supreme Court considered whether an interlocutory appeal from a denial

of a motion to compel arbitration necessitates an automatic stay of proceedings in the district court

pending the outcome of the appeal. The Supreme Court held that it does: “The sole question here

is whether the district court must stay its pre-trial and trial proceedings while the interlocutory

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appeal is ongoing. The answer is yes: The district court must stay its proceedings.” 599 U.S. at

738.

Coinbase reasoned that the automatic stay is a straightforward application of the

longstanding principle of Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982),

that an interlocutory appeal deprives the district court of jurisdiction to proceed on the matters that

are subject to the appeal. See Bombardier Corp. v. Nat’l R.R. Passenger Corp., 2002 WL

31818924, at *1 (D.C. Cir. Dec. 12, 2002) (denying stay motion “as unnecessary . . . . because a

non-frivolous appeal from the district court’s order divests the district court of jurisdiction over

those aspects of the case on appeal”); DSMC Inc. v. Convera Corp., 2002 WL 31741498, at *1

(D.C. Cir. Dec. 6, 2002) (same); see also United States v. DeFries, 129 F.3d 1293, 1303 (D.C. Cir.

1997) (“The mandate rule prevents the waste of judicial resources that might result if a district

court, prior to the issuance of the appeals court’s mandate, proceeds with a case, ruling on motions

and hearing evidence, after which the appeals court reverses its original decision on rehearing.”).

Coinbase acknowledged that the Federal Arbitration Act “does not say whether the district

court proceedings must be stayed,” but the Court held that the Act was enacted “against a clear

background principle prescribed by this Court’s precedents: An appeal, including an interlocutory

appeal, ‘divests the district court of its control over those aspects of the case involved in the

appeal.’” 599 U.S. at 740 (quoting Griggs, 459 U.S. at 58). “That Griggs principle reflects a

longstanding tenet of American procedure,” under which the “filing of a notice of appeal confers

jurisdiction on the court of appeals and divests the district court of control over those aspects of

the case involved in the appeal.” Id. This divestiture is mandatory and, therefore, “requires an

automatic stay of district court proceedings that relate to any aspect of the case involved in the

appeal,” absent contrary indications that are not present here. Id. at 744.

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Applied to the appeal of a motion to compel arbitration, the Supreme Court held that “the

entire case is essentially ‘involved in the appeal,’” and therefore the entire case must be stayed.

This is because the key question in that context was “whether the case belongs in arbitration or

instead in the district court.” Id. (quoting Griggs, 459 U.S. at 58).

The exact same holds true here. President Trump has appealed the Court’s rulings on his

motions to dismiss based on Presidential immunity and principles of double jeopardy. Both issues

concern whether this case can be brought at all, meaning “the entire case is essentially ‘involved

in the appeal.” Id. at 741 (quoting Griggs, 459 U.S. at 58); see also Pearson v. Callahan, 555 U.S.

223, 232 (2009) (Presidential immunity is immunity from suit not just immunity from liability).

Therefore, “[t]he Griggs principle resolves this [Motion]” and requires a stay of all proceedings.

Id.

Indeed, when a party appeals the denial of a motion to dismiss based on official immunity,

the question “whether ‘the litigation may go forward in the district court is precisely what the court

of appeals must decide.’” Coinbase, 599 U.S. at 741 (quoting Bradford-Scott Data Corp. v.

Physician Computer Network, Inc., 128 F.3d 504, 506 (7th Cir. 1997)). “Here, as elsewhere, it

‘makes no sense for trial to go forward while the court of appeals cogitates on whether there should

be one.’” Id. (quoting Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989)). “In short, Griggs

dictates that the district court must stay its proceedings while the interlocutory appeal on

[Presidential immunity and double jeopardy principles] is ongoing.” Id.

Coinbase explicitly recognizes this conclusion, citing appeals of official immunity and

double jeopardy as uncontroversial circumstances where an automatic stay of proceedings in the

district court is required: “In the Circuits that have considered the issue in the analogous contexts

of qualified immunity and double jeopardy . . . district courts likewise must automatically stay their

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proceedings while the interlocutory appeal is ongoing.” Id. at 742 (emphasis added). Official

immunity and double jeopardy are, of course, the issues at stake in President Trump’s interlocutory

appeal.

In Blassingame, likewise, the D.C. Circuit reinforced the rationales that require a stay

pending President Trump’s appeal. The Court of Appeals held that factual questions related to the

determination of Presidential immunity must be resolved “before any merits-related discovery.”

2023 WL 8291481, at *22. That is because “[o]fficial immunity, including the President’s official-

act immunity, is ‘immunity from suit rather than a mere defense to liability.’” Id. (quoting Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985)). “Official immunity . . . is ‘an entitlement not to stand trial

or face the other burdens of litigation.’” Id. “And as we have made clear, ‘discovery is itself one

of the burdens from which defendants are sheltered’ by official immunity.” Id. (quoting Martin v.

D.C. Metro. Police Dep’t, 812 F.2d 1425, 1430 (D.C. Cir. 1987)). “The importance of shielding

officials from the burden of unwarranted discovery is among the reasons the Supreme Court has

‘repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible

stage in litigation.’” Id. (quoting Pearson, 555 U.S. at 232).

Where, as here, “the official claiming immunity from suit is the President,” these concerns

are “particularly pronounced.” Id. (citing Nixon v. Fitzgerald, 457 U.S. 731, 749-53 (1982)). Thus,

the Court held that “President Trump therefore must be afforded an opportunity to resolve his

immunity claim before merits discovery.” Id. (emphasis added). Accordingly, Blassingame

reinforces both that the entire case is involved in an appeal related to official immunity, and that

the stay must extend to all proceedings.

Coinbase, Blassingame, and DeFries thus unequivocally support three conclusions: (1) the

stay of district-court proceedings is mandatory, not discretionary; (2) the stay applies in criminal

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as well as civil cases; and (3) the stay extends, not just to trial, but to pretrial proceedings as well.

Coinbase held that “Griggs dictates that the district court must stay its proceedings while the

interlocutory appeal . . . is ongoing.” 599 U.S. at 741 (emphasis added). Coinbase cited criminal

cases—notably, double jeopardy cases—as falling within the “Griggs principle” that dictates a

mandatory stay of proceedings pending appeal. See id. at 742 n.4 (citing, inter alia, United States

v. Montgomery, 262 F.3d 233, 239-240 (4th Cir. 2001) (double jeopardy); United States v. LaMere,

951 F.2d 1106, 1108 (9th Cir. 1991) (same); United States v. Grabinski, 674 F.2d 677, 679 (8th

Cir. 1982) (same); and United States v. Dunbar, 611 F.2d 985, 988-89 (5th Cir. 1980) (en banc)

(same)). Coinbase emphasized that the stay extends to both “pre-trial and trial proceedings.” Id.

at 743 (emphasis added). Moreover, Blassingame reinforced this conclusion by reaffirming that

Presidential immunity is immunity from suit, not just immunity from liability, and that questions

of immunity should be fully resolved “before any merits discovery.” 2023 WL 8291481, at *22.

The prosecution has effectively conceded all three of these points. The prosecution has

admitted that the stay is mandatory and applies in criminal cases—it cited a criminal case for the

proposition that “while a non-frivolous question of immunity is pending on appeal . . . the party

asserting immunity cannot be forced to go to trial.” Doc. 142, at 5 (citing United States v.

Brizendine, 659 F.2d 215, 219 (D.C. Cir. 1981)); see also id. at 6 (“While any such non-frivolous

appeal is pending, the defendant cannot be required to go to trial”); id. at 7 (admitting that “a non-

frivolous appeal would temporarily divest this Court of jurisdiction . . . over . . . ‘those aspects of

the case involved in the appeal’”) (quoting Griggs, 459 U.S. at 58). 1 Moreover, though the

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Casting aside Justice Alito’s analysis in Vance as if it was entitled to the weight of an anonymous
blog post, and offering little more than ipse dixit, the Special Counsel’s Office previously urged
the Court to characterize President Trump’s motion based on double jeopardy principles and the
Impeachment Judgment Clause as “frivolous.” See, e.g., Doc. 139 at 63. The Court declined that
invitation to error, and the appropriateness of that decision is illustrated by the fact that the Court
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prosecution refers to the defendant not “be[ing] forced to go to trial,” id. at 5, the criminal case

cited by the prosecution—Brizendine—holds that claims of official immunity and double jeopardy

protect the appealing defendant from the “burdens of litigation,” not just the burdens of trial:

[B]oth the Double Jeopardy Clause and the Speech or Debate Clause are designed to
protect individuals from the burdens of litigation as well as the possibility of conviction.
Both of these guarantees assure that an individual will not be forced, with certain
exceptions, to endure the personal strain, public embarrassment, and expense of a criminal
trial.

659 F.2d at 219 (emphasis added) (cleaned up).

These conclusions accord with longstanding case law from the D.C. Circuit and other

Circuits holding that proceedings in a trial court should be stayed pending appeals of immunity

and double jeopardy claims. In immunity cases, the D.C. Circuit has held that, “[b]ecause an

appeal properly pursued from the district court’s order” denying a claim of immunity “divests the

district court of control over those aspects of the case on appeal, exclusive jurisdiction to resolve

the threshold issue this case presents vests in this court, and the district court may not proceed to

trial until the appeal is resolved.” Princz v. Fed. Republic of Germany, 998 F.2d 1, 1 (D.C. Cir.

1993) (citing Griggs, 459 U.S. at 58; and Apostol, 870 F.2d 1335); see also Doc. 49, United States

v. Turkiye Halk Bankasi, A.S., No. 20-3499 (2d Cir. Dec. 23, 2020) (stay order pending appeal on

devoted approximately 10 pages of analysis to the motion. In the absence of controlling authority
foreclosing President Trump’s position—and there is none—the motion could not be deemd
frivolous. Regardless, the time to make such a determination has passed. See United States v.
Leppo, 634 F.2d 101, 105 (3d Cir. 1980) (“Of course, in the absence of a finding that the motion
is frivolous, the trial court must suspend its proceedings once a notice of appeal is filed.” (emphasis
added)); United States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980) (“[T]he district courts, in any
denial of a double jeopardy motion, should make written findings determining whether the motion
is frivolous or nonfrivolous.” (emphasis added)). President Trump’s notice of appeal has divested
the Court of jurisdiction by operation of law, and the Office may not now renew its already rejected
request for a finding of frivolousness.
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Foreign Sovereign Immunities Act issue decided in Turkiye Halk Bankasi, A.S. v. United States,

598 U.S. 264 (2023)).

“[W]hen a public official takes an interlocutory appeal to assert a colorable claim to

absolute or qualified immunity from damages, the district court must stay proceedings.”

Goshtasby v. Bd. of Trustees of Univ. of Illinois, 123 F.3d 427, 428 (7th Cir. 1997). “[I]f the

defendant is correct that it has immunity, its right to be free of litigation is compromised, and lost

to a degree, if the district court proceeds while the appeal is pending.” Id. (staying proceedings

against the University of Illinois pending resolution of a claim of sovereign immunity on appeal);

Hegarty v. Somerset County, 25 F.3d 17, 17 (1st Cir. 1994) (granting police officers’ emergency

motion to stay discovery during qualified immunity appeal). “[T]he stay of discovery, of necessity,

ordinarily must carry over through the appellate court’s resolution of that question . . . .” Hegarty,

25 F.3d at 17 (emphasis in original).

In short, “the background Griggs principle already requires an automatic stay of district

court proceedings that relate to any aspect of the case involved in the appeal.” Coinbase, 599 U.S.

at 744. “[I]f a defendant’s interlocutory claim is considered immediately appealable . . . the district

court loses its power to proceed from the time the defendant files its notice of appeal until the

appeal is resolved.” LaMere, 951 F.2d at 1108. Because President Trump’s appeal considers

whether the criminal case against him may proceed at all, the proceedings in this case are

automatically stayed pending the outcome of that appeal.

II. The Stay Is Warranted Irrespective of the Mandatory Jurisdictional Bar.

In addition to the jurisdiction issue under Griggs and the mandate rule, the Court should

stay all proceedings pending appeal given the well-established “importance of resolving immunity

questions at the earliest possible stage in litigation.” Pearson, 555 U.S. at 232; see also

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Blassingame, 2023 WL 8291481, at *22. Though the Griggs principle reinforced in Coinbase is

mandatory and jurisdictional, it is also supported by strong policy considerations that would

independently warrant a stay pending appeal even if the question were discretionary. As the

Supreme Court reasoned in Coinbase:

From the Judiciary’s institutional perspective, moreover, allowing a case to proceed

simultaneously in the district court and the court of appeals creates the possibility that the
district court will waste scarce judicial resources—which could be devoted to other
pressing criminal or civil matters—on a dispute that will ultimately head to arbitration in
any event. That scenario represents the worst possible outcome for parties and the courts:
litigating a dispute in the district court only for the court of appeals to reverse and order
the dispute arbitrated. The Griggs rule avoids that detrimental result.

Coinbase, 599 U.S. at 743 (citation and quotation marks omitted). The same logic applies to a

disputed claim of immunity—“allowing a case to proceed simultaneously in the district court and

the court of appeals creates the possibility that the court will waste scarce judicial resources . . . on

a dispute that” may “ultimately” be decided on grounds of Presidential immunity, with such a dual-

track process being “the worst possible outcome for parties and the courts.” Id.

Concerns regarding judicial resources and costs from continued litigation during the

pendency of the appeal—including financial, reputational, and political costs to President Trump

and this country—are significant. As the Court noted last week, the Court has not yet resolved

pending motions to dismiss the indictment on statutory grounds and for selective and vindictive

prosecution. Doc. 171 at 1 n.1. President Trump has also filed motions to compel discovery,

including classified discovery that the prosecution may argue implicates national security issues,

which the Court should not address unless it is necessary following the appeal. Docs. 167, 169.

President Trump’s CIPA § 5 Notice presents similar complex issues relating to classified

information, including the possibility of fact-intensive CIPA § 6 proceedings should the

prosecution request them. See Doc. 168. The Court has also directed President Trump to make

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intrusive disclosures regarding his defense, including defense exhibits and expert disclosures, see

Doc. 39, and whether he intends to pursue an advice-of-counsel defense (including production of

otherwise-privileged disclosures), see Doc. 147 at 2.

The “common practice” of staying proceedings while such issues are on appeal “reflects

common sense . . . . If the district court could move forward with pre-trial and trial proceedings

while the appeal on [immunity] was ongoing, then many of the asserted benefits of [immunity] . .

. would be irretrievably lost . . . .” Id. at 742-43 (emphasis added). “[C]ontinuation of proceedings

in the district court ‘largely defeats the point of the appeal.’” Id. at 743 (quoting Bradford-Scott,

128 F.3d at 505). “A right to interlocutory appeal of the [immunity or double jeopardy] issue

without an automatic stay of the district court proceedings is therefore like a lock without a key, a

bat without a ball, a computer without a keyboard—in other words, not especially sensible.” Id.

For these reasons, and those cited above, a stay of all proceedings in this Court is warranted

pending the final resolution of President Trump’s appeal.

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CONCLUSION

The Court should stay all further proceedings in this case pending the final resolution of

President Trump’s appeal of the Court’s Dec. 1, 2023, Order and Memorandum Opinion, Docs.

171, 172, and hold in abeyance all current deadlines until this motion is resolved.

Finally, because the continuation of these proceedings in the absence of jurisdiction inflicts

ongoing irreparable harm, President Trump respectfully requests that this Court rule on this motion

within seven days. If the Court does not grant this motion and stay proceedings, President Trump

respectfully requests that this Court enter a temporary administrative stay of proceedings while he

pursues relief from the Court of Appeals.

CERTIFICATE OF CONFERRAL

Counsel for President Trump conferred with counsel for the prosecution, who oppose the

relief requested herein.

Dated: December 7, 2023 Respectfully submitted,

/s/ Todd Blanche

John F. Lauro, Esq. Todd Blanche, Esq. (PHV)
D.C. Bar No. 392830 [email protected]
[email protected] Emil Bove, Esq. (PHV)
Gregory M. Singer, Esq. (PHV) [email protected]
[email protected] BLANCHE LAW PLLC
LAURO & SINGER 99 Wall St., Suite 4460
400 N. Tampa St., 15th Floor New York, NY 10005
Tampa, FL 33602 (212) 716-1250
(813) 222-8990

Counsel for President Donald J. Trump

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