Page 1 UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Case No. 1:23-cr-257-TSC
DONALD J. TRUMP,
Defendant.
________________________________/
PRESIDENT TRUMP’S MOTION
FOR PRE-TRIAL RULE 17(c) SUBPOENAS
AND ACCOMPANYING MEMORANDUM OF LAW
Pursuant to Fed. R. Crim. P. 17(c), President Donald J. Trump respectfully requests leave
to issue the attached subpoenas duces tecum (the “Requested Subpoenas”) for the pretrial
production of records, addressed to the following: (1) the Archivist of the United States at the
National Archives and Records Administration (NARA), (2) the Clerk of the House of
Representatives, (3) the current Committee on House Administration, which is the successor entity
to the January 6 Select Committee; (4) Richard Sauber, the Special Counsel to the President ; (5)
Johnathan Meyer, the General Counsel of the Department of Homeland Security; (6)
Representative Barry Loudermilk, U.S. House of Representatives; and (7) Representative Bennie
Thompson, U.S. House of Representatives. The House Committee on Administration has
identified these records as missing from the archived records of the January 6 Select Committee.
By these subpoenas, President Trump seeks to retrieve certain missing records and uncover
information about their disposition. Page 2 MEMORANDUM OF LAW
I.
Background
President Trump is charged with Conspiracy to Defraud the United States in violation of
18 U.S.C § 371, Conspiracy to Obstruct an Official Proceeding in violation of 18 U.S.C. § 1512(k),
Obstruction of and Attempt to Obstruct an Official Proceeding in violation of 18 U.S.C. §§
1512(c)(2) and 2, and Conspiracy Against Rights in violation of 18 U.S.C. § 241. (Doc. 1,
(Indictment)). These false allegations carry a focus on the certification of the 2020 presidential
election and encompass the period between the election, held on November 3, 2020, and January
6, 2021.
As the Court is aware, a House of Representatives committee previously investigated the
events of January 6, 2021. H.Res. 503, 117th Cong. (2021), (the “Select Committee”). The Select
Committee compiled a large archive of information.
Upon the dissolution of the Select
Committee at the conclusion of the 117th Congress, applicable House Rules required the Select
Committee to transfer its records to the Committee on House Administration for preservation and
archiving.
According to a letter from Representative Barry Loudermilk, Chair of the Subcommittee
on Oversight, however, the Select Committee did not transfer or archive numerous records
(collectively, the “Missing Records”).
See (Exhibit 1, Letter from The Honorable Barry
Loudermilk, June 26, 2023).
The Select Committee purportedly accumulated 4 terabytes of data during the investigation, but
Rep. Loudermilk reported that his successor committee received only 2.5 terabytes. See Andrew
Mark Miller, J6 Committee failed to preserve records, has no data on Capitol Hill security
failures, GOP charges, Fox News.com, August 8, 2023 (https://www.foxnews.com/politics/j6committee-failed-to-preserve-records-has-no-data-on-capitol-hill-security-failures-g
Page 3 For example, “[t]he video recordings of transcribed interviews and depositions, which
featured prominently during the Select Committee’s hearings, were not archived or transferred to
the Committee on House Administration.” Id. at 1. In a response to Mr. Loudermilk’s letter, the
former Chair of the Select Committee, Representative Bennie Thompson, confirmed that—despite
their plain relevance these and other records, (which Representative Thompson cryptically
described as “temporary committee records”) were not archived. See (Exhibit 2, Letter from The
Honorable Bennie Thompson, July 7, 2023). Likewise, at the very end of its existence, the Select Committee “loan[ed]” other crucial
records to “the White House Special Counsel and the Department of Homeland Security.” (Exhibit
2, Letter from The Honorable Bennie Thompson, July 7, 2023). From the descriptions in the letters,
these materials include important intelligence and other law enforcement information, records
identifying witnesses, and other information the Select Committee deemed sensitive pursuant to
agreements with the White House and DHS.
In truth, this was no “loan” and the Select Committee’s failure to archive the materials was
intentional—Representative Thompson provided the materials to the White House and DHS on
Friday, December 30, 2022, knowing full well the Select Committee would dissolve the very next
business day. 3 As planned, the Biden Administration did not return these documents prior to the
dissolution of the Select Committee, and, as a result, the Select Committee did not “properly
archive that material with the rest of its records.” Id.
Rule VII of the Rules of the U.S. House of Representatives governs official House records,
requiring committees and officers to transfer to the Clerk 1) any noncurrent records of committees
and subcommittees, and 2) those created or acquired by House Officers and their staffs in the
course of their official duties.
December 30, 2022, was a Friday, Monday, January 2 was a federal holiday, and the 117th
Congress ended on January 3, at noon. Page 4 Needless to say, there is significant overlap between the Select Committee’s investigation
and this case, and there is a strong likelihood that individuals discussed in the Missing Records
could be called as trial witnesses. Indeed, the letters from the Select Committee transferring these
records to the White House and DHS indicate how important the Select Committee considered
these witnesses and records. See (Exhibit 3, Letter from the Select Committee to Richard A Sauber,
Dec. 30, 2022 (”Sauber letter”); Exhibit 4, Letter from Select Committee to Jonathan Meyer, Dec.
30, 2022 (“Meyer letter”)).
President Trump is fully entitled to seek the Missing Records by subpoena. It is also equally
important to determine if these records have been lost, destroyed, or altered. The Requested
Subpoenas are narrowly tailored to achieve these legitimate ends, which are fundamental to
ensuring President Trump’s right to a fair trial under the Fifth and Sixth Amendments. As the
Missing Records are currently unavailable, the Requested Subpoenas would not be duplicative of
any other records either publicly available or produced in discovery.
Accordingly, President Trump requests leave to serve the Requested Subpoenas, which
include the narrowly tailored document requests listed below (the “Requested Records”). 4 As
these records may be maintained by more than one party, President Trump seeks leave to send a
substantially similar subpoena to the seven likely custodians of the Requested Records: (1) the
Archivist of the United States at the National Archives and Records Administration (NARA), (2)
the Clerk of the House of Representatives, and (3) the current Committee on House
Administration, which is the successor to the January 6 Select Committee; (4) Representative
Barry Loudermilk, U.S. House of Representatives; (5) Representative Bennie Thompson, U.S.
Although the discovery in this case is vast and the defense has not reviewed it in its entirety, the
defense has a good faith belief that the government’s Rule 16 discovery productions do not include
the Requested Records. Page 5 House of Representatives; (6) the Special Counsel to the White House; and (7) the General Counsel
of the Department of Homeland Security. The Requested Records include:
1. The Select Committee Missing Materials. 2. Records and communications regarding methods, practices, instructions, litigation
holds, and/or policies regarding transfer, retention, archiving, or destruction of the
Select Committee Missing Materials.
3. Records and communications regarding the loss or destruction of the Select
Committee Missing Materials.
4. Communications with the Department of Justice or other law enforcement
agencies related to the Select Committee Missing Materials.
5. Records and communications relating to any accommodations or agreements with
the Executive Branch, including the Department of Justice, Department of
Homeland Security, and White House, regarding the Select Committee Missing
Materials.
6. Any other documents, communications, or records in any way pertaining to the
Missing Materials.
II.
Applicable Law
Under Fed. R. Crim. P. 17(c), the Court “may direct that books, papers, documents or
objects designated in the subpoena be produced before the court at a time prior to the trial.” United
States v. Nixon, 418 U.S. 683, 698 (1974). “Rule 17(c) implements the Sixth Amendment
guarantee that an accused have compulsory process to secure evidence in his favor.” In re Martin
Marietta Corp., 856 F.2d 619, 621 (4th Cir. 1988) (citation omitted); see also, e.g., United States
v. Tucker, 249 F.R.D. 58, 65 (S.D.N.Y. 2008) (“Criminal defendants have the right to put before
The Requested Subpoenas are attached to this Motion as Exhibit 5-11.
The Requested Subpoenas define “Select Committee Missing Materials” in a limited manner to
encompass the Missing Records discussed herein. Page 6 a jury evidence that might influence the determination of guilt. To effect that right, a defendant
must have the ability to obtain that evidence.” (internal citation and quotation omitted)).
Indeed, a defendant’s fundamental rights to confrontation, due process, and a fair trial
compel access to documents that are “necessary to permit the defendant to raise a defense.” See
Tucker, 249 F.R.D. at 65; United States v. King, 194 F.R.D. 569, 585 (E.D. Va. 2000) (“There is
a compelling interest in having ‘every man’s evidence’ at a criminal trial . . . to the extent that it is
relevant. The ability to impeach a key prosecution witness and to admit her statements into
evidence to that end is a critically important component of a fair trial and is the sine qua non of a
meaningful right to confrontation and cross-examination. These rights are secured to the
Defendants by the Fifth and Sixth Amendments. And, society too has a compelling interest in
assuring a fair trial and meaningful confrontation.”) (citations omitted and emphasis added));
United States v. Beckford, 964 F. Supp. 1010, 1019 (E.D. Va. 1997) (“‘[t]he essential purpose of
[Rule 17(c)] is to implement the Sixth Amendment guarantee that an accused have compulsory
process to secure evidence in the accused’s favor.’” (emphasis in original) (quoting 25 Moore’s
Federal Practice § 617.08[l] at 617–21)).
The constitutional importance of Rule 17(c) is amplified by the asymmetries inherent in
criminal prosecutions. See Tucker, 249 F.R.D. at 60:
By the time the prosecution’s attention is drawn to an individual, law enforcement
has typically gathered substantial evidence relating to the alleged offense. The
government’s ability to gather evidence is further enhanced by the use of search
and seizure, a mechanism not available to the defense. . . . Grand jury proceedings
provide another significant avenue for the prosecution to gather evidence. . . .
Before the grand jury, prosecutors have wide latitude to compel testimony and
obtain documentary evidence without the restrictions imposed by the Federal Rules
of Evidence and out of the presence of the defendant and her counsel.
In short, “[i]t is inherent in our criminal justice system that defendants will virtually always
be outmatched in investigatory resources, funds, and time to prepare for litigation.” Id. at 63. Page 7 Although there is no constitutional requirement that “criminal prosecution be equally matched,”
id., “the Constitution recognize[s] the awesome power of indictment and the virtually limitless
resources of government investigators. [Thus], [m]uch of the Bill of Rights is designed to redress
the advantage that inheres in a government prosecution.” Id. at 64–65 (quoting Wardius v. Oregon,
412 U.S. 470, 480 (1973) (Douglas, J., concurring)).
In that same vein, the defense is entitled to know whether evidence has been lost. “It is
axiomatic that criminal proceedings must comport with prevailing notions of fundamental fairness,
which include what might loosely be called the area of constitutionally guaranteed access to
evidence.” In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (quoting California v. Trombetta,
467 U.S. 479, 485 (1984); United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)) (internal
quotation marks omitted).
Separate tests are applied to determine whether the government's failure to preserve
evidence rises to the level of a due process violation in cases where material exculpatory evidence
is not accessible, versus cases where “potentially useful” evidence is not accessible. United States
v. Wright, 260 F.3d 568, 570 (6th Cir. 2001) (citing Trombetta, 467 U.S. at 489; Arizona v.
Youngblood, 488 U.S. 51, 58 (1988)); see also United States v. Greenberg, 835 F.3d 295, 303 (2d
Cir. 2016) (A criminal defendant moving for dismissal on the basis of spoliation of the evidence
must make a two-pronged showing that the evidence possessed exculpatory value “that was
apparent before [it] was destroyed” and that it was “of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.”). Penalties for
spoliation of evidence in the criminal context vary but could include dismissal or an adverse
inference. See, e.g., United States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011) (assuming
arguendo that the civil spoliation doctrine applies in the criminal context); In re Al Baluchi, Page 8 F.3d at 368–69 (in considering whether a September 11th defendant could delay the destruction of
potential evidence, government argued defendant could seek “adverse inferences or other,
alternative forms of relief that would potentially compensate him for the lost ability to obtain
favorable evidence.”); United States v. Hood, 615 F.3d 1293, 1301 (10th Cir. 2010) (assuming
arguendo that it was error for the district court not to apply the civil standard governing the
spoilation of evidence); United States v. Mincy, 2022 WL 17176398, at *9 (S.D. Ohio 2022)
(“When considering the appropriate response to claims of spoliation in the criminal context, the
Court may consider how much the lack of the evidence at issue will prejudice the defendant.”).
Thus, to obtain a Rule 17(c) subpoena, a defendant need only show that the material sought
is: (1) relevant; (2) admissible; and (3) specific. Nixon, 418 U.S., at 700; see also United States v.
Farha, No. 8:11-CR-115-T-30MAP, 2012 WL 12969785, at *1 (M.D. Fla. Mar. 28, 2012) (“In
United States v. Nixon, the Supreme Court established three hurdles a party must overcome when
seeking production under Rule 17(c)—relevancy, admissibility, and specificity.”). Although “Rule
17(c) subpoena[s] may not be used for a ‘general fishing expedition,’” Tucker, 249 F.R.D. at (quoting Nixon, 418 U.S., at 700), they are a proper means for the defendant to obtain documents
he intends to use at trial, Bowman Dairy Co. v. United States, 341 U.S. 214, 219–20 (1951). The
decision to authorize a Rule 17(c) pre-trial subpoena is “committed to the sound discretion of the
trial court.” Nixon, 418 U.S., at 702.
III.
Argument
The Requested Subpoenas are proper under Nixon because they seek relevant, admissible
documents that are narrowly tailored to the issues in this case. Id.; Fed. R. Crim. P. 17(c). Further,
because the Requested Records are critical to President Trump’s expected trial defense, his Page 9 fundamental rights to confrontation, due process, and a fair trial require that he have access to
those documents. Accordingly, the Requested Subpoenas should issue.
A. The Requested Records are Relevant to President Trump’s Defense
Based on the description in the letters to the Special Counsel to the President and the
General counsel for DHS, the missing video recordings and other records relate to Secret Service
personnel and witnesses within the purview of the White House or Executive Department with
direct and extensive knowledge of events around January 6, 2021. Records of these likely trial
witnesses are critical to the defense. As the letters attest: “those personnel provided very important
information for the Committee’s investigation (Ex. 3, Sauber letter); and “it became clear that
additional interviews of certain Secret Service agents and personnel would be necessary for
multiple reasons.” (Ex. 2, Meyer Letter). The Meyer letter also discusses “substantial intelligence
information” communicated to the White House and Secret Service related to January 6th.
Pursuant to a defendant’s Sixth Amendment right to compulsory process, “the Court must
enforce a defendant's subpoena for testimony or documents ‘essential to the defense.’” United
States v. Ehrlichman, 389 F. Supp. 95, 97 (D.D.C. 1974), aff'd, 546 F.2d 910 (D.C. Cir. 1976)
(citing United States v. Schneiderman, 106 F.Supp. 731 (S.D.Cal.1952); Washington v. State of
Texas, 388 U.S. 14 (1967); United States v. De Stefano, 476 F.2d 324, 330 (7th Cir. 1973)).
“[S]uch process may even run to the Members of Congress.” Id. (citing United States v. Cooper,
4 U.S. (4 Dall.) 341, 1 L.Ed. 859 (1800)).
Furthermore, recordings of interviews are critical evidence. Impeachment of witnesses is
“clearly material” to the defense. Tucker, 249 F.R.D. at 66. “The Constitution guarantees criminal
defendants the right to confront their accusers, and the right to cross-examination has been held to
be an essential purpose of the Confrontation Clause.” Id. at 67. “This right is meaningless if a Page 10 defendant is denied the reasonable opportunity to obtain material evidence that could be crucial to
that cross-examination.” Id.
The Requested Records are both relevant and “necessary to permit [Defendant] to raise a
defense,” Tucker, 249 F.R.D. at 65. Without these documents, President Trump cannot possibly
have a fair trial. Beckford, 964 F. Supp. at 1019 (“[T]he right to compulsory process in aid of the
defense case . . . is considered fundamental to the right to a fair trial.”); Brady v. Maryland, U.S. 83, 87 (1963) (“Society wins not only when the guilty are convicted but when criminal trials
are fair; our system of the administration of justice suffers when any accused is treated unfairly.
An inscription on the walls of the Department of Justice states the proposition candidly for the
federal domain: ‘The United States wins its point whenever justice is done its citizens in the
courts.’”).
B. The Requested Subpoenas are Limited and Specific
The Requested Subpoenas seek limited categories of documents relating to two highly
relevant topics—records that were not retained by the Select Committee and the ultimate
disposition of those records. Far from a “general fishing expedition,’” Tucker, 249 F.R.D. at 65,
the Requested Subpoenas concern only a specific issue and do not include documents related to
any other aspect of the Select Committee’s investigation or archived records. Moreover, there is a
dispute within the House of Representatives over the disposition of these important records. The
Requested Records were clearly important to the Select Committee’s investigation and involved
witnesses with direct knowledge of January 6 related events. See 2 Charles A. Wright, Fed. Prac.
& Proc. Crim. § 275 (4th ed.) (“A subpoena that fails to describe any specific documents is too
broad, but it is not necessary that the subpoena designate each particular paper desired. It is
sufficient if kinds of documents are designated with reasonable particularity.”). Finally, given the Page 11 limited subject matter requested, Respondents should have little trouble locating responsive
documents or confirming they have no such documents, and in any event, retain the right to raise
any objections with the Court. See Fed. R. Crim. P. 17(c); Nixon, 418 U.S. at 699–700. C. The Requested Records are Admissible
Materials in the possession of the government actors may be reached by subpoena under
Rule 17(c) as long as they are evidentiary. Bowman Dairy Co. v. United States, 341 U.S. 214, (1951). The materials subpoenaed need not actually be used in evidence. Id. It is only required
that a good-faith effort be made to obtain evidence. Id. at 220. “[A]ny document or other materials,
admissible as evidence, obtained by the Government by solicitation or voluntarily from third
persons is subject to subpoena.” Id. at 221.
One feature of the evidence identified in the Meyer letter is that it could be used to show
notice to White House personnel regarding the events of January 6th. The Indictment directly
alleges that President Trump “directed [supporters] to the Capitol to obstruct the certification
proceeding…” so the knowledge and intent of President Trump and others is plainly relevant.
(Doc. 1, Ind. ¶10(d)). These records could be offered for the non-hearsay purpose of demonstrating
a witness or party’s state of mind, F.R.E. 801(c)(2). Of course, they are also impeachment
Due to the importance of these documents and the likelihood that they will lead to the discovery
of additional witnesses or evidence, pretrial production is necessary to allow Defendants adequate
time to review the records and respond accordingly. See United States v. Tomison, 969 F. Supp.
587, 593 (E.D. Cal. 1997) (“In cases . . . where evidence relevant to guilt or punishment is in a
third party’s possession and is too massive for the defendant to adequately review unless obtained
prior to trial, pre–trial production through Rule 17(c) is necessary to preserve the defendant’s
constitutional right to obtain and effectively use such evidence at trial.”); see also Bowman Dairy
Co., 341 U.S. at 220 (Rule 17(c)’s “chief innovation was to expedite [criminal] trial[s] by
providing a time and place before trial for the inspection of the subpoenaed materials.”). It also
goes without saying that such documents could be requested via a trial subpoena; in which case
Defendants may be required to request an adjournment to review and respond to the documents,
causing unnecessary delays. Page 12 materials, to the extent the government intends to call witnesses from the Secret Service or White
House on its behalf. See United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir. 1984) (rule
17(c) subpoena proper where requested documents “possessed evidentiary potential for
impeachment purposes.”). CONCLUSION
For the foregoing reasons, President Trump respectfully requests that the Court grant
counsel leave to issue the attached subpoenas duces tecum and require the production of records
within two weeks of service of the subpoena on the subpoenaed party.
Certificate of Conference
Counsel for President Trump has conferred with the prosecution. The prosecution does not
take a position at this time and will respond after an opportunity to consider the motion in full.
Dated: October 11, Todd Blanche, Esq. (PHV)
toddblanche@blanchelaw.com
BLANCHE LAW
99 Wall St., Suite New York, NY (212) 716-
Respectfully submitted,
/s/John F. Lauro
John F. Lauro, Esq.
D.C. Bar No. jlauro@laurosinger.com
Gregory M. Singer, Esq. (PHV)
gsinger@laurosinger.com
Filzah I. Pavalon, Esq. (PHV)
fpavalon@laurosinger.com
LAURO & SINGER
400 N. Tampa St., 15th Floor
Tampa, FL (813) 222-Counsel for President Trump
See also Tucker, 249 F.R.D. at 67 (“The Constitution guarantees criminal defendants the right to
confront their accusers, and the right to cross-examination has been held to be an essential purpose
of the Confrontation Clause. This right is meaningless if a defendant is denied the reasonable
opportunity to obtain material evidence that could be crucial to that cross-examination.”).
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Case 1:23-cr-00257-TSC Document 99 Filed 10/11/23 Page 1 of 12
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Case No. 1:23-cr-257-TSC
DONALD J. TRUMP,
Defendant.
________________________________/
PRESIDENT TRUMP’S MOTION
FOR PRE-TRIAL RULE 17(c) SUBPOENAS
AND ACCOMPANYING MEMORANDUM OF LAW
Pursuant to Fed. R. Crim. P. 17(c), President Donald J. Trump respectfully requests leave
to issue the attached subpoenas duces tecum (the “Requested Subpoenas”) for the pretrial
production of records, addressed to the following: (1) the Archivist of the United States at the
National Archives and Records Administration (NARA), (2) the Clerk of the House of
Representatives, (3) the current Committee on House Administration, which is the successor entity
to the January 6 Select Committee; (4) Richard Sauber, the Special Counsel to the President ; (5)
Johnathan Meyer, the General Counsel of the Department of Homeland Security; (6)
Representative Barry Loudermilk, U.S. House of Representatives; and (7) Representative Bennie
Thompson, U.S. House of Representatives. The House Committee on Administration has
identified these records as missing from the archived records of the January 6 Select Committee.
By these subpoenas, President Trump seeks to retrieve certain missing records and uncover
information about their disposition.
1
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Case 1:23-cr-00257-TSC Document 99 Filed 10/11/23 Page 2 of 12
MEMORANDUM OF LAW
I.
Background
President Trump is charged with Conspiracy to Defraud the United States in violation of
18 U.S.C § 371, Conspiracy to Obstruct an Official Proceeding in violation of 18 U.S.C. § 1512(k),
Obstruction of and Attempt to Obstruct an Official Proceeding in violation of 18 U.S.C. §§
1512(c)(2) and 2, and Conspiracy Against Rights in violation of 18 U.S.C. § 241. (Doc. 1,
(Indictment)). These false allegations carry a focus on the certification of the 2020 presidential
election and encompass the period between the election, held on November 3, 2020, and January
6, 2021.
As the Court is aware, a House of Representatives committee previously investigated the
events of January 6, 2021. H.Res. 503, 117th Cong. (2021), (the “Select Committee”). The Select
Committee compiled a large archive of information. 1
Upon the dissolution of the Select
Committee at the conclusion of the 117th Congress, applicable House Rules required the Select
Committee to transfer its records to the Committee on House Administration for preservation and
archiving.
According to a letter from Representative Barry Loudermilk, Chair of the Subcommittee
on Oversight, however, the Select Committee did not transfer or archive numerous records
(collectively, the “Missing Records”).
See (Exhibit 1, Letter from The Honorable Barry
Loudermilk, June 26, 2023).
The Select Committee purportedly accumulated 4 terabytes of data during the investigation, but
Rep. Loudermilk reported that his successor committee received only 2.5 terabytes. See Andrew
Mark Miller, J6 Committee failed to preserve records, has no data on Capitol Hill security
failures, GOP charges, Fox News.com, August 8, 2023 (https://www.foxnews.com/politics/j6committee-failed-to-preserve-records-has-no-data-on-capitol-hill-security-failures-gop-charges).
1
2
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Case 1:23-cr-00257-TSC Document 99 Filed 10/11/23 Page 3 of 12
For example, “[t]he video recordings of transcribed interviews and depositions, which
featured prominently during the Select Committee’s hearings, were not archived or transferred to
the Committee on House Administration.” Id. at 1. In a response to Mr. Loudermilk’s letter, the
former Chair of the Select Committee, Representative Bennie Thompson, confirmed that—despite
their plain relevance these and other records, (which Representative Thompson cryptically
described as “temporary committee records”) were not archived. See (Exhibit 2, Letter from The
Honorable Bennie Thompson, July 7, 2023). 2
Likewise, at the very end of its existence, the Select Committee “loan[ed]” other crucial
records to “the White House Special Counsel and the Department of Homeland Security.” (Exhibit
2, Letter from The Honorable Bennie Thompson, July 7, 2023). From the descriptions in the letters,
these materials include important intelligence and other law enforcement information, records
identifying witnesses, and other information the Select Committee deemed sensitive pursuant to
agreements with the White House and DHS.
In truth, this was no “loan” and the Select Committee’s failure to archive the materials was
intentional—Representative Thompson provided the materials to the White House and DHS on
Friday, December 30, 2022, knowing full well the Select Committee would dissolve the very next
business day. 3 As planned, the Biden Administration did not return these documents prior to the
dissolution of the Select Committee, and, as a result, the Select Committee did not “properly
archive that material with the rest of its records.” Id.
Rule VII of the Rules of the U.S. House of Representatives governs official House records,
requiring committees and officers to transfer to the Clerk 1) any noncurrent records of committees
and subcommittees, and 2) those created or acquired by House Officers and their staffs in the
course of their official duties.
2
3
December 30, 2022, was a Friday, Monday, January 2 was a federal holiday, and the 117th
Congress ended on January 3, at noon.
3
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Needless to say, there is significant overlap between the Select Committee’s investigation
and this case, and there is a strong likelihood that individuals discussed in the Missing Records
could be called as trial witnesses. Indeed, the letters from the Select Committee transferring these
records to the White House and DHS indicate how important the Select Committee considered
these witnesses and records. See (Exhibit 3, Letter from the Select Committee to Richard A Sauber,
Dec. 30, 2022 (”Sauber letter”); Exhibit 4, Letter from Select Committee to Jonathan Meyer, Dec.
30, 2022 (“Meyer letter”)).
President Trump is fully entitled to seek the Missing Records by subpoena. It is also equally
important to determine if these records have been lost, destroyed, or altered. The Requested
Subpoenas are narrowly tailored to achieve these legitimate ends, which are fundamental to
ensuring President Trump’s right to a fair trial under the Fifth and Sixth Amendments. As the
Missing Records are currently unavailable, the Requested Subpoenas would not be duplicative of
any other records either publicly available or produced in discovery.
Accordingly, President Trump requests leave to serve the Requested Subpoenas, which
include the narrowly tailored document requests listed below (the “Requested Records”). 4 As
these records may be maintained by more than one party, President Trump seeks leave to send a
substantially similar subpoena to the seven likely custodians of the Requested Records: (1) the
Archivist of the United States at the National Archives and Records Administration (NARA), (2)
the Clerk of the House of Representatives, and (3) the current Committee on House
Administration, which is the successor to the January 6 Select Committee; (4) Representative
Barry Loudermilk, U.S. House of Representatives; (5) Representative Bennie Thompson, U.S.
4
Although the discovery in this case is vast and the defense has not reviewed it in its entirety, the
defense has a good faith belief that the government’s Rule 16 discovery productions do not include
the Requested Records.
4
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Case 1:23-cr-00257-TSC Document 99 Filed 10/11/23 Page 5 of 12
House of Representatives; (6) the Special Counsel to the White House; and (7) the General Counsel
of the Department of Homeland Security. 5
The Requested Records include:
1. The Select Committee Missing Materials. 6
2. Records and communications regarding methods, practices, instructions, litigation
holds, and/or policies regarding transfer, retention, archiving, or destruction of the
Select Committee Missing Materials.
3. Records and communications regarding the loss or destruction of the Select
Committee Missing Materials.
4. Communications with the Department of Justice or other law enforcement
agencies related to the Select Committee Missing Materials.
5. Records and communications relating to any accommodations or agreements with
the Executive Branch, including the Department of Justice, Department of
Homeland Security, and White House, regarding the Select Committee Missing
Materials.
6. Any other documents, communications, or records in any way pertaining to the
Missing Materials.
II.
Applicable Law
Under Fed. R. Crim. P. 17(c), the Court “may direct that books, papers, documents or
objects designated in the subpoena be produced before the court at a time prior to the trial.” United
States v. Nixon, 418 U.S. 683, 698 (1974). “Rule 17(c) implements the Sixth Amendment
guarantee that an accused have compulsory process to secure evidence in his favor.” In re Martin
Marietta Corp., 856 F.2d 619, 621 (4th Cir. 1988) (citation omitted); see also, e.g., United States
v. Tucker, 249 F.R.D. 58, 65 (S.D.N.Y. 2008) (“Criminal defendants have the right to put before
5
The Requested Subpoenas are attached to this Motion as Exhibit 5-11.
6
The Requested Subpoenas define “Select Committee Missing Materials” in a limited manner to
encompass the Missing Records discussed herein.
5
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a jury evidence that might influence the determination of guilt. To effect that right, a defendant
must have the ability to obtain that evidence.” (internal citation and quotation omitted)).
Indeed, a defendant’s fundamental rights to confrontation, due process, and a fair trial
compel access to documents that are “necessary to permit the defendant to raise a defense.” See
Tucker, 249 F.R.D. at 65; United States v. King, 194 F.R.D. 569, 585 (E.D. Va. 2000) (“There is
a compelling interest in having ‘every man’s evidence’ at a criminal trial . . . to the extent that it is
relevant. The ability to impeach a key prosecution witness and to admit her statements into
evidence to that end is a critically important component of a fair trial and is the sine qua non of a
meaningful right to confrontation and cross-examination. These rights are secured to the
Defendants by the Fifth and Sixth Amendments. And, society too has a compelling interest in
assuring a fair trial and meaningful confrontation.”) (citations omitted and emphasis added));
United States v. Beckford, 964 F. Supp. 1010, 1019 (E.D. Va. 1997) (“‘[t]he essential purpose of
[Rule 17(c)] is to implement the Sixth Amendment guarantee that an accused have compulsory
process to secure evidence in the accused’s favor.’” (emphasis in original) (quoting 25 Moore’s
Federal Practice § 617.08[l] at 617–21)).
The constitutional importance of Rule 17(c) is amplified by the asymmetries inherent in
criminal prosecutions. See Tucker, 249 F.R.D. at 60:
By the time the prosecution’s attention is drawn to an individual, law enforcement
has typically gathered substantial evidence relating to the alleged offense. The
government’s ability to gather evidence is further enhanced by the use of search
and seizure, a mechanism not available to the defense. . . . Grand jury proceedings
provide another significant avenue for the prosecution to gather evidence. . . .
Before the grand jury, prosecutors have wide latitude to compel testimony and
obtain documentary evidence without the restrictions imposed by the Federal Rules
of Evidence and out of the presence of the defendant and her counsel.
In short, “[i]t is inherent in our criminal justice system that defendants will virtually always
be outmatched in investigatory resources, funds, and time to prepare for litigation.” Id. at 63.
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Although there is no constitutional requirement that “criminal prosecution be equally matched,”
id., “the Constitution recognize[s] the awesome power of indictment and the virtually limitless
resources of government investigators. [Thus], [m]uch of the Bill of Rights is designed to redress
the advantage that inheres in a government prosecution.” Id. at 64–65 (quoting Wardius v. Oregon,
412 U.S. 470, 480 (1973) (Douglas, J., concurring)).
In that same vein, the defense is entitled to know whether evidence has been lost. “It is
axiomatic that criminal proceedings must comport with prevailing notions of fundamental fairness,
which include what might loosely be called the area of constitutionally guaranteed access to
evidence.” In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (quoting California v. Trombetta,
467 U.S. 479, 485 (1984); United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)) (internal
quotation marks omitted).
Separate tests are applied to determine whether the government's failure to preserve
evidence rises to the level of a due process violation in cases where material exculpatory evidence
is not accessible, versus cases where “potentially useful” evidence is not accessible. United States
v. Wright, 260 F.3d 568, 570 (6th Cir. 2001) (citing Trombetta, 467 U.S. at 489; Arizona v.
Youngblood, 488 U.S. 51, 58 (1988)); see also United States v. Greenberg, 835 F.3d 295, 303 (2d
Cir. 2016) (A criminal defendant moving for dismissal on the basis of spoliation of the evidence
must make a two-pronged showing that the evidence possessed exculpatory value “that was
apparent before [it] was destroyed” and that it was “of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.”). Penalties for
spoliation of evidence in the criminal context vary but could include dismissal or an adverse
inference. See, e.g., United States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011) (assuming
arguendo that the civil spoliation doctrine applies in the criminal context); In re Al Baluchi, 952
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F.3d at 368–69 (in considering whether a September 11th defendant could delay the destruction of
potential evidence, government argued defendant could seek “adverse inferences or other,
alternative forms of relief that would potentially compensate him for the lost ability to obtain
favorable evidence.”); United States v. Hood, 615 F.3d 1293, 1301 (10th Cir. 2010) (assuming
arguendo that it was error for the district court not to apply the civil standard governing the
spoilation of evidence); United States v. Mincy, 2022 WL 17176398, at *9 (S.D. Ohio 2022)
(“When considering the appropriate response to claims of spoliation in the criminal context, the
Court may consider how much the lack of the evidence at issue will prejudice the defendant.”).
Thus, to obtain a Rule 17(c) subpoena, a defendant need only show that the material sought
is: (1) relevant; (2) admissible; and (3) specific. Nixon, 418 U.S., at 700; see also United States v.
Farha, No. 8:11-CR-115-T-30MAP, 2012 WL 12969785, at *1 (M.D. Fla. Mar. 28, 2012) (“In
United States v. Nixon, the Supreme Court established three hurdles a party must overcome when
seeking production under Rule 17(c)—relevancy, admissibility, and specificity.”). Although “Rule
17(c) subpoena[s] may not be used for a ‘general fishing expedition,’” Tucker, 249 F.R.D. at 65
(quoting Nixon, 418 U.S., at 700), they are a proper means for the defendant to obtain documents
he intends to use at trial, Bowman Dairy Co. v. United States, 341 U.S. 214, 219–20 (1951). The
decision to authorize a Rule 17(c) pre-trial subpoena is “committed to the sound discretion of the
trial court.” Nixon, 418 U.S., at 702.
III.
Argument
The Requested Subpoenas are proper under Nixon because they seek relevant, admissible
documents that are narrowly tailored to the issues in this case. Id.; Fed. R. Crim. P. 17(c). Further,
because the Requested Records are critical to President Trump’s expected trial defense, his
8
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fundamental rights to confrontation, due process, and a fair trial require that he have access to
those documents. Accordingly, the Requested Subpoenas should issue.
A. The Requested Records are Relevant to President Trump’s Defense
Based on the description in the letters to the Special Counsel to the President and the
General counsel for DHS, the missing video recordings and other records relate to Secret Service
personnel and witnesses within the purview of the White House or Executive Department with
direct and extensive knowledge of events around January 6, 2021. Records of these likely trial
witnesses are critical to the defense. As the letters attest: “those personnel provided very important
information for the Committee’s investigation (Ex. 3, Sauber letter); and “it became clear that
additional interviews of certain Secret Service agents and personnel would be necessary for
multiple reasons.” (Ex. 2, Meyer Letter). The Meyer letter also discusses “substantial intelligence
information” communicated to the White House and Secret Service related to January 6th.
Pursuant to a defendant’s Sixth Amendment right to compulsory process, “the Court must
enforce a defendant's subpoena for testimony or documents ‘essential to the defense.’” United
States v. Ehrlichman, 389 F. Supp. 95, 97 (D.D.C. 1974), aff'd, 546 F.2d 910 (D.C. Cir. 1976)
(citing United States v. Schneiderman, 106 F.Supp. 731 (S.D.Cal.1952); Washington v. State of
Texas, 388 U.S. 14 (1967); United States v. De Stefano, 476 F.2d 324, 330 (7th Cir. 1973)).
“[S]uch process may even run to the Members of Congress.” Id. (citing United States v. Cooper,
4 U.S. (4 Dall.) 341, 1 L.Ed. 859 (1800)).
Furthermore, recordings of interviews are critical evidence. Impeachment of witnesses is
“clearly material” to the defense. Tucker, 249 F.R.D. at 66. “The Constitution guarantees criminal
defendants the right to confront their accusers, and the right to cross-examination has been held to
be an essential purpose of the Confrontation Clause.” Id. at 67. “This right is meaningless if a
9
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defendant is denied the reasonable opportunity to obtain material evidence that could be crucial to
that cross-examination.” Id.
The Requested Records are both relevant and “necessary to permit [Defendant] to raise a
defense,” Tucker, 249 F.R.D. at 65. Without these documents, President Trump cannot possibly
have a fair trial. Beckford, 964 F. Supp. at 1019 (“[T]he right to compulsory process in aid of the
defense case . . . is considered fundamental to the right to a fair trial.”); Brady v. Maryland, 373
U.S. 83, 87 (1963) (“Society wins not only when the guilty are convicted but when criminal trials
are fair; our system of the administration of justice suffers when any accused is treated unfairly.
An inscription on the walls of the Department of Justice states the proposition candidly for the
federal domain: ‘The United States wins its point whenever justice is done its citizens in the
courts.’”).
B. The Requested Subpoenas are Limited and Specific
The Requested Subpoenas seek limited categories of documents relating to two highly
relevant topics—records that were not retained by the Select Committee and the ultimate
disposition of those records. Far from a “general fishing expedition,’” Tucker, 249 F.R.D. at 65,
the Requested Subpoenas concern only a specific issue and do not include documents related to
any other aspect of the Select Committee’s investigation or archived records. Moreover, there is a
dispute within the House of Representatives over the disposition of these important records. The
Requested Records were clearly important to the Select Committee’s investigation and involved
witnesses with direct knowledge of January 6 related events. See 2 Charles A. Wright, Fed. Prac.
& Proc. Crim. § 275 (4th ed.) (“A subpoena that fails to describe any specific documents is too
broad, but it is not necessary that the subpoena designate each particular paper desired. It is
sufficient if kinds of documents are designated with reasonable particularity.”). Finally, given the
10
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limited subject matter requested, Respondents should have little trouble locating responsive
documents or confirming they have no such documents, and in any event, retain the right to raise
any objections with the Court. See Fed. R. Crim. P. 17(c); Nixon, 418 U.S. at 699–700. 7
C. The Requested Records are Admissible
Materials in the possession of the government actors may be reached by subpoena under
Rule 17(c) as long as they are evidentiary. Bowman Dairy Co. v. United States, 341 U.S. 214, 219
(1951). The materials subpoenaed need not actually be used in evidence. Id. It is only required
that a good-faith effort be made to obtain evidence. Id. at 220. “[A]ny document or other materials,
admissible as evidence, obtained by the Government by solicitation or voluntarily from third
persons is subject to subpoena.” Id. at 221.
One feature of the evidence identified in the Meyer letter is that it could be used to show
notice to White House personnel regarding the events of January 6th. The Indictment directly
alleges that President Trump “directed [supporters] to the Capitol to obstruct the certification
proceeding…” so the knowledge and intent of President Trump and others is plainly relevant.
(Doc. 1, Ind. ¶10(d)). These records could be offered for the non-hearsay purpose of demonstrating
a witness or party’s state of mind, F.R.E. 801(c)(2). Of course, they are also impeachment
7
Due to the importance of these documents and the likelihood that they will lead to the discovery
of additional witnesses or evidence, pretrial production is necessary to allow Defendants adequate
time to review the records and respond accordingly. See United States v. Tomison, 969 F. Supp.
587, 593 (E.D. Cal. 1997) (“In cases . . . where evidence relevant to guilt or punishment is in a
third party’s possession and is too massive for the defendant to adequately review unless obtained
prior to trial, pre–trial production through Rule 17(c) is necessary to preserve the defendant’s
constitutional right to obtain and effectively use such evidence at trial.”); see also Bowman Dairy
Co., 341 U.S. at 220 (Rule 17(c)’s “chief innovation was to expedite [criminal] trial[s] by
providing a time and place before trial for the inspection of the subpoenaed materials.”). It also
goes without saying that such documents could be requested via a trial subpoena; in which case
Defendants may be required to request an adjournment to review and respond to the documents,
causing unnecessary delays.
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materials, to the extent the government intends to call witnesses from the Secret Service or White
House on its behalf. See United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir. 1984) (rule
17(c) subpoena proper where requested documents “possessed evidentiary potential for
impeachment purposes.”). 8
CONCLUSION
For the foregoing reasons, President Trump respectfully requests that the Court grant
counsel leave to issue the attached subpoenas duces tecum and require the production of records
within two weeks of service of the subpoena on the subpoenaed party.
Certificate of Conference
Counsel for President Trump has conferred with the prosecution. The prosecution does not
take a position at this time and will respond after an opportunity to consider the motion in full.
Dated: October 11, 2023
Todd Blanche, Esq. (PHV)
toddblanche@blanchelaw.com
BLANCHE LAW
99 Wall St., Suite 4460
New York, NY 10005
(212) 716-1250
Respectfully submitted,
/s/John F. Lauro
John F. Lauro, Esq.
D.C. Bar No. 392830
jlauro@laurosinger.com
Gregory M. Singer, Esq. (PHV)
gsinger@laurosinger.com
Filzah I. Pavalon, Esq. (PHV)
fpavalon@laurosinger.com
LAURO & SINGER
400 N. Tampa St., 15th Floor
Tampa, FL 33602
(813) 222-8990
Counsel for President Trump
8
See also Tucker, 249 F.R.D. at 67 (“The Constitution guarantees criminal defendants the right to
confront their accusers, and the right to cross-examination has been held to be an essential purpose
of the Confrontation Clause. This right is meaningless if a defendant is denied the reasonable
opportunity to obtain material evidence that could be crucial to that cross-examination.”).
12
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