MOTION for Stay Order Regarding Automatic Stay of Proceedings Pending Appeal re [177] Notice of Appeal - Interlocutory by DONALD J. TRUMP. (Blanche, Todd) Modified event on 12/8/2023 (znmw).
Page 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Case No. 1:23-cr-00257-TSC
v.
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 *(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. Page 2 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 631. 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 Page 3 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 *(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. Page 4 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 Page 5 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 officialact 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 Page 6 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 nonfrivolous 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
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 Page 7 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. Page 8 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 alsoPage 9 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 dualtrack 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 Page 10 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. Page 11 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, John F. Lauro, Esq.
D.C. Bar No. jlauro@laurosinger.com
Gregory M. Singer, Esq. (PHV)
gsinger@laurosinger.com
LAURO & SINGER
400 N. Tampa St., 15th Floor
Tampa, FL (813) 222-
Respectfully submitted,
/s/ Todd Blanche
Todd Blanche, Esq. (PHV)
ToddBlanche@blanchelaw.com
Emil Bove, Esq. (PHV)
Emil.Bove@blanchelaw.com
BLANCHE LAW PLLC
99 Wall St., Suite New York, NY (212) 716-
Counsel for President Donald J. Trump
PDF Page 1
PlainSite Cover Page
PDF Page 2
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
Case No. 1:23-cr-00257-TSC
v.
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.
1
PDF Page 3
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 2 of 11
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 631. 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
2
PDF Page 4
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 3 of 11
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.
3
PDF Page 5
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 4 of 11
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
4
PDF Page 6
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 5 of 11
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 officialact 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
5
PDF Page 7
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 6 of 11
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 nonfrivolous 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
1
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
6
PDF Page 8
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 7 of 11
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.
7
PDF Page 9
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 8 of 11
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.”
8
Pearson, 555 U.S. at 232; see also
PDF Page 10
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 9 of 11
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 dualtrack 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
9
PDF Page 11
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 10 of 11
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.
10
PDF Page 12
Case 1:23-cr-00257-TSC Document 178 Filed 12/07/23 Page 11 of 11
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
John F. Lauro, Esq.
D.C. Bar No. 392830
jlauro@laurosinger.com
Gregory M. Singer, Esq. (PHV)
gsinger@laurosinger.com
LAURO & SINGER
400 N. Tampa St., 15th Floor
Tampa, FL 33602
(813) 222-8990
Respectfully submitted,
/s/ Todd Blanche
Todd Blanche, Esq. (PHV)
ToddBlanche@blanchelaw.com
Emil Bove, Esq. (PHV)
Emil.Bove@blanchelaw.com
BLANCHE LAW PLLC
99 Wall St., Suite 4460
New York, NY 10005
(212) 716-1250
Counsel for President Donald J. Trump
11
Back to 
