USA v. TRUMP Document 180: transmission of notice of appeal and docket sheet to USCA

District Of Columbia District Court
Case No. 1:23-cr-00257-TSC
Filed December 8, 2023

Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid ON 12/7/2023 as to DONALD J. TRUMP re [179] Notice of Appeal - Interlocutory. (zhsj)

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Page 1 APPEAL,CAT B
U.S. District Court
District of Columbia (Washington, DC)
CRIMINAL DOCKET FOR CASE #: 1:23−cr−00257−TSC−Case title: USA v. TRUMP
Date Filed: 08/01/
Assigned to: Judge Tanya S.
Chutkan
Appeals court case number:
23−Defendant (1)
DONALD J. TRUMP
represented by John F. Lauro
LAURO & SINGER
400 N. Tampa Street
15th Floor
Tampa, FL (813) 222−Fax: (813) 222−Email: jlauro@laurosinger.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Retained
Emil Bove
BLANCHE LAW
99 Wall Street, Suite New York, NY 212−716−Email: emil.bove@blanchelaw.com
ATTORNEY TO BE NOTICED
Designation: Retained
Filzah I. Pavalon
LAURO & SINGER
400 N. Tampa Street
15th Floor
Tampa, FL (813) 222−Fax: (813) 222−Email: fpavalon@laurosinger.com
PRO HAC VICE
ATTORNEY TO BE NOTICED
Designation: Retained
Todd Blanche
BLANCHE LAW
Page 2 99 Wall Street
New York, NY (212) 716−Email: toddblanche@blanchelaw.com
PRO HAC VICE
ATTORNEY TO BE NOTICED
Designation: Pro Hac Vice
Pending Counts
Disposition
18 U.S.C. 371; CONSPIRACY
TO DEFRAUD THE UNITED
STATES; Conspiracy to Defraud
the United States
(1)
18 U.S.C. 1512(k);
TAMPERING WITH WITNESS,
VICTIM, OR AN INFORMANT;
Conspiracy to Obstruct an
Official Proceeding
(2)
18 U.S.C. 1512(c)(2), 2;
TAMPERING WITH A
WITNESS, VICTIM OR
INFORMANT; Obstruction of,
and Attempt to Obstruct, an
Official Proceeding
(3)
18 U.S.C. 241; CONSPIRACY
AGAINST RIGHTS OF
CITIZENS; Conspiracy Against
Rights
(4)
Highest Offense Level
(Opening)
Felony
Terminated Counts
Disposition
None
Highest Offense Level
(Terminated)
None
Complaints
Disposition
None
Page 3 Plaintiff
USA
represented by J.P. Cooney
U.S. ATTORNEY'S OFFICE FOR THE
DISTRICT OF COLUMBIA
555 Fourth Street, NW
Washington, DC (202) 252−Email: joseph.cooney@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
James Pearce
U.S. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION APPELLATE
SECTION
Department of Justice, Criminal Division
950 Pennsylvania Ave NW
Suite Washington, DC (202) 532−Fax: (202) 305−Email: james.pearce@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
Molly Gulland Gaston
U.S. ATTORNEY'S OFFICE FOR THE
DISTRICT OF COLUMBIA
555 Fourth Street, NW
Washington, DC (202) 252−Email: molly.gaston@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
Thomas Windom
555 Fourth Street NW
Washington, DC 202−252−Email: thomas.windom@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
John M. Pellettieri
Special Counsel's Office
950 Pennsylvania Avenue NW
Page 4 Rm. B−Washington, DC 202−714−Email: john.pellettieri@usdoj.gov
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
Date Filed
#
Docket Text
08/01/
INDICTMENT as to DONALD J. TRUMP (1) count(s) 1, 2, 3, 4. (zltp) (Entered:
08/01/2023)
08/01/
MOTION to Seal Case by USA as to DONALD J. TRUMP. (Attachments: # 1 Text
of Proposed Order)(zltp) (Entered: 08/01/2023)
08/01/
ORDER granting 3 Motion to Seal Case as to DONALD J. TRUMP (1). Signed by
Magistrate Judge Moxila A. Upadhyaya on 8/1/2023. (zltp) (Entered: 08/01/2023)
08/01/
Case unsealed as to DONALD J. TRUMP (zltp) (Entered: 08/01/2023)
08/03/
NOTICE OF ATTORNEY APPEARANCE: John F. Lauro appearing for DONALD
J. TRUMP (Lauro, John) (Entered: 08/03/2023)
08/03/
MOTION for Leave to Appear Pro Hac Vice Todd Blanche Filing fee $ 100, receipt
number ADCDC−10252226. Fee Status: Fee Paid. by DONALD J. TRUMP. (Lauro,
John) (Entered: 08/03/2023)
08/03/
Summons Returned Executed on 8/3/2023 as to DONALD J. TRUMP. (ztl) (Entered:
08/04/2023)
08/03/
MINUTE ORDER as to Donald J. Trump: As required by Rule 5(f), the United States
is ordered to produce all exculpatory evidence to the defendant pursuant to Brady v.
Maryland and its progeny. Not doing so in a timely manner may result in sanctions,
including exclusion of evidence, adverse jury instructions, dismissal of charges and
contempt proceedings.Signed by Magistrate Judge Moxila A. Upadhyaya on
8/3/2023. (ztl) (Entered: 08/04/2023)
08/03/
ORAL MOTION for Speedy Trial by USA as to DONALD J. TRUMP. (ztl) (Entered:
08/04/2023)
08/03/
Minute Entry for proceedings held before Magistrate Judge Moxila A. Upadhyaya:
Return on Summons/Initial Appearance/Arraignment as to Counts 1,2,3,4 held on
8/3/2023. Plea of Not Guilty entered as to all counts. The Court advised the
Government of its due process obligation under Rule 5(f).Status Conference set for
8/28/2023 at 10:00 AM in Courtroom 9− In Person before Judge Tanya S. Chutkan.
Bond Status of Defendant: Defendant Remain on Personal Recognizance; Court
Reporter: Jeff Hook; Defense Attorney: John Lauro and Todd Blanche; US Attorney:
Thomas Windom and Molly Gaston; Pretrial Officer: Takeysha Robinson. (ztl)
(Entered: 08/04/2023)
08/03/
MINUTE ORDER as to DONALD J. TRUMP: A status conference will be held in
this matter on August 28, 2023 at 10:00 AM in Courtroom 9 before Judge Tanya S.
Chutkan. The court waives the requirement for Defendant to appear at that
conference. It is hereby ORDERED that Defendant shall file any motion for excluding
the time until the next status conference from the Speedy Trial Act clock by August 8,
Page 5 2023; and that the government shall file any opposition to that motion by August 13,
2023. It is FURTHER ORDERED that by August 10, 2023, the government shall file
a brief proposing a trial date and providing an estimate of the time required to set
forth the prosecution's case in chief during that trial; and that by August 17, 2023,
Defendant shall file a response brief likewise proposing a trial date and estimating, to
the extent possible, the time required to set forth the defense at trial. Signed by Judge
Tanya S. Chutkan on 8/3/2023. (ztl) (Entered: 08/04/2023)
08/03/
08/04/
08/04/
ORDER Setting Conditions of Release as to DONALD J. TRUMP (1) Personal
Recognizance. Signed by Magistrate Judge Moxila A. Upadhyaya on 8/3/2023.
(Attachment: # 1 Appearance Bond) (znjb) (Entered: 08/07/2023)
MOTION for Leave to Appear Pro Hac Vice Filzah I. Pavalon Filing fee $ 100,
receipt number ADCDC−10255735. Fee Status: Fee Paid. by DONALD J. TRUMP.
(Lauro, John) (Entered: 08/04/2023)
MOTION for Protective Order by USA as to DONALD J. TRUMP. (Attachments: # Text of Proposed Order)(Gaston, Molly) (Entered: 08/04/2023)
08/05/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by 5:PM on August 7, 2023, Defendant shall file a response to the government's 10 Motion
for Protective Order, stating Defendant's position on the Motion. If Defendant
disagrees with any portion of the government's proposed Protective Order, ECF No.
10−1, his response shall include a revised version of that Protective Order with any
modifications in redline. Signed by Judge Tanya S. Chutkan on 08/05/2023. (lcss)
(Entered: 08/05/2023)
08/05/
MINUTE ORDER as to DONALD J. TRUMP: Granting 9 Motion for Leave to
Appear Pro Hac Vice. Filzah I. Pavalon is hereby admitted pro hac vice to appear in
this matter on behalf of Defendant. Counsel should register for e−filing via PACER
and file a notice of appearance pursuant to LCrR 44.5(a). Click for instructions.
Signed by Judge Tanya S. Chutkan on 08/05/2023. (lcss) (Entered: 08/05/2023)
08/05/
MOTION for Extension of Time to File Response/Reply as to 10 MOTION for
Protective Order , MOTION for Hearing by DONALD J. TRUMP. (Attachments: # Text of Proposed Order)(Lauro, John) (Entered: 08/05/2023)
08/05/
RESPONSE by USA as to DONALD J. TRUMP re 11 MOTION for Extension of
Time to File Response/Reply as to 10 MOTION for Protective Order MOTION for
Hearing (Gaston, Molly) (Entered: 08/05/2023)
08/05/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's 11 Motion for Extension
of Time is hereby DENIED. Defendant may continue to confer with the government
regarding its proposed protective order before or after the August 7, 2023 5:00 PM
deadline for his response. The court will determine whether to schedule a hearing to
discuss the proposed protective order after reviewing Defendant's response and, if
included, his revised proposed protective order with modifications in redline. Signed
by Judge Tanya S. Chutkan on 08/05/2023. (lcss) (Entered: 08/05/2023)
08/06/
Set/Reset Deadline as to DONALD J. TRUMP: Defendant shall file a response to the
government's 10 Motion for Protective Order, stating Defendant's position on the
Motion by 5:00 PM on August 7, 2023. If Defendant disagrees with any portion of the
government's proposed Protective Order, (Dkt. #10−1), his response shall include a
revised version of that Protective Order with any modifications in redline. (jth)
(Entered: 08/06/2023)
Page 6 08/07/
RESPONSE by DONALD J. TRUMP re 10 MOTION for Protective Order (Lauro,
John) (Entered: 08/07/2023)
08/07/
REPLY in Support by USA as to DONALD J. TRUMP re 10 MOTION for Protective
Order (Gaston, Molly) (Entered: 08/07/2023)
08/07/
MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the
government's 10 Motion for Protective Order and Defendant's 14 Response, as well as
the government's 15 Reply, the court will schedule a hearing on the parties' respective
proposals. The court will waive the requirement of Defendant's appearance.
Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023,
the parties shall meet and confer and file a joint notice of two dates and times on or
before August 11, 2023 when both parties are available for a hearing. Signed by Judge
Tanya S. Chutkan on 08/07/2023. (lcss) (Entered: 08/07/2023)
08/08/
Set/Reset Deadline as to DONALD J. TRUMP: by 3:00 PM on 8/8/2023, the parties
shall meet and confer and file a joint notice of two dates and times on or before
8/11/2023 when both parties are available for a hearing. (jth) (Entered: 08/08/2023)
08/08/
TRANSCRIPT OF RETURN ON SUMMONS/INITIAL
APPEARANCE/ARRAIGNMENT in case as to DONALD J. TRUMP before
Magistrate Judge Moxila A. Upadhyaya held on August 3, 2023. Page Numbers: 1 −
24. Date of Issuance: August 8, 2023. Court Reporter: Jeff Hook. Contact
Information: 202−354−3373 | jeff_hook@dcd.uscourts.gov. Transcripts may be
ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 8/29/2023. Redacted Transcript Deadline set for 9/8/2023.
Release of Transcript Restriction set for 11/6/2023.(Hook, Jeff) (Entered: 08/08/2023)
08/08/
08/08/
08/08/
NOTICE by the Parties in Response to Court's August 7, 2023 Minute Order by USA
as to DONALD J. TRUMP re Order,, (Gaston, Molly) (Entered: 08/08/2023)
MINUTE ORDER as to DONALD J. TRUMP: The court hereby schedules a hearing
on the parties' respective protective order proposals in this matter on August 11, at 10:00 AM in Courtroom 9. The requirement of Defendant's appearance is waived
for this hearing. Signed by Judge Tanya S. Chutkan on 08/08/2023. (lcc) (Entered:
08/08/2023)

MOTION to Exclude Time Under Speedy Trial Act by DONALD J. TRUMP.
(Attachments: # 1 Text of Proposed Order Granting Motion)(Lauro, John) (Entered:
08/08/2023)
08/09/
Page 7 Set/Reset Hearing as to DONALD J. TRUMP: A Hearing on the Parties' Respective
Protective Order Proposals is set for August 11, 2023, at 10:00 AM in Courtroom 9.
before Judge Tanya S. Chutkan. The requirement of Defendant's appearance is waived
for this hearing. (jth) (Entered: 08/09/2023)
08/09/
08/09/
08/09/
ENTERED IN ERROR.....NOTICE Updated Certificate of Good Standing by
DONALD J. TRUMP re 7 MOTION for Leave to Appear Pro Hac Vice Todd
Blanche Filing fee $ 100, receipt number ADCDC−10252226. Fee Status: Fee Paid.
(Lauro, John) Modified on 8/9/2023 (zhsj). (Entered: 08/09/2023)
NOTICE OF ERROR as to DONALD J. TRUMP regarding 19 Notice (Other). The
following error(s) need correction: Incorrect format (Letter)− correspondence is not
permitted (LCrR 49(f)(4)). Please refile as a Notice of Filing attaching your
Certificate of Good Standing to a Notice of Filing Document Containing the Caption
of the Court. (zhsj) (Entered: 08/09/2023)

08/09/
NOTICE of Filing by DONALD J. TRUMP re 7 MOTION for Leave to Appear Pro
Hac Vice Todd Blanche Filing fee $ 100, receipt number ADCDC−10252226. Fee
Status: Fee Paid. (Lauro, John) (Entered: 08/09/2023)
MINUTE ORDER as to DONALD J. TRUMP: Granting 7 Motion for Leave to
Appear Pro Hac Vice Counsel should register for e−filing via PACER and file a
notice of appearance pursuant to LCrR 44.5(a). Click for instructions as to
DONALD J. TRUMP (1). Signed by Magistrate Judge Moxila A. Upadhyaya on
8/9/2023. (zcll) (Entered: 08/09/2023)
08/09/
NOTICE OF ATTORNEY APPEARANCE: Filzah Pavalon appearing for DONALD
J. TRUMP (Pavalon, Filzah) (Entered: 08/09/2023)
08/10/
MOTION for Leave to Appear Pro Hac Vice Gregory M. Singer Filing fee $ 100,
receipt number ADCDC−10266892. Fee Status: Fee Paid. by DONALD J. TRUMP.
(Lauro, John) (Entered: 08/10/2023)
08/10/
RESPONSE TO ORDER OF THE COURT by USA as to DONALD J. TRUMP re
Order,,,, Set Deadlines,,, Government's Response to Court's August 3, 2023 Minute
Order (Gaston, Molly) (Entered: 08/10/2023)
08/10/
MOTION for Hearing Pursuant to Classified Information Procedures Act by USA as
to DONALD J. TRUMP. (Attachments: # 1 Text of Proposed Order)(Windom,
Thomas) (Entered: 08/10/2023)
08/10/
Memorandum in Opposition by USA as to DONALD J. TRUMP re Motion for
Speedy Trial, 18 Motion to Exclude (Gaston, Molly) (Entered: 08/10/2023)
08/10/
08/10/08/10/
MINUTE ORDER as to DONALD J. TRUMP: Granting 22 Motion for Leave to
Appear Pro Hac Vice. Gregory M. Singer is hereby admitted pro hac vice to appear in
this matter on behalf of Defendant. Counsel should register for e−filing via PACER
and file a notice of appearance pursuant to LCrR 44.5(a). Click for instructions.
Signed by Judge Tanya S. Chutkan on 08/10/2023. (lcc) (Entered: 08/10/2023)
NOTICE OF ATTORNEY APPEARANCE: Todd Blanche appearing for DONALD
J. TRUMP (Blanche, Todd) (Entered: 08/10/2023)
MINUTE ORDER as to DONALD J. TRUMP: The government's 24 Sealed Motion
for Leave to Submit Exhibit Ex Parte and Under Seal is hereby DENIED without
prejudice. Signed by Judge Tanya S. Chutkan on 8/10/2023. (zjd) (Entered:
Page 8 08/10/2023)
08/11/
Minute Entry for proceedings held before Judge Tanya S. Chutkan: Hearing on the
Parties' Respective Protective Order Proposals as to DONALD J. TRUMP held on
8/11/2023. The Court shall issue a protective order consistent with the rulings made
on the record. Oral Order of the Court granting Government's 25 Motion for Pretrial
Conference Pursuant to the Classified Information Procedures Act. This hearing shall
proceed on August 28, 2023 at 10:00 AM in Courtroom 9 before Judge Tanya S.
Chutkan. Bond Status of Defendant: remains on Personal Recognizance; Court
Reporter: Bryan A. Wayne; Defense Attorneys: John F. Lauro, Gregory M. Singer,
and Todd Blanche; US Attorneys: Thomas Windom and Molly G. Gaston. (zjd)
(Entered: 08/11/2023)
08/11/
MINUTE ORDER as to DONALD J. TRUMP: The government's 25 Motion for
Hearing Pursuant to Classified Information Procedures Act (CIPA) is GRANTED.
Defense counsel consented to the motion during the August 11, 2023 hearing.
Accordingly, the court will hold a hearing pursuant to CIPA Section 2 during the
status conference currently scheduled for August 28, 2023. Signed by Judge Tanya S.
Chutkan on 8/11/2023. (zjd) (Entered: 08/11/2023)
08/11/
PROTECTIVE ORDER GOVERNING DISCOVERY AND AUTHORIZING
DISCLOSURE OF GRAND JURY TESTIMONY as to DONALD J. TRUMP.
Consistent with the rulings made on the record during the hearing on August 11,
2023, the Court grants in part and denies in part the Government's 10 Motion for
Protective Order. Signed by Judge Tanya S. Chutkan on 8/11/2023. (zjd) (Entered:
08/11/2023)
08/11/
TRANSCRIPT OF HEARING ON PROTECTIVE ORDER in case as to DONALD J.
TRUMP before Judge Tanya S. Chutkan held on August 11, 2023; Page Numbers:
1−73. Date of Issuance: 8/11/2023. Court Reporter: Bryan A. Wayne. Transcripts may
be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 9/1/2023. Redacted Transcript Deadline set for 9/11/2023.
Release of Transcript Restriction set for 11/9/2023.(Wayne, Bryan) (Main Document
29 replaced on 8/23/2023) (zhsj). (Entered: 08/11/2023)
08/17/
RESPONSE TO ORDER OF THE COURT by DONALD J. TRUMP re Order,,,, Set
Deadlines,,, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # Exhibit, # 6 Exhibit, # 7 Exhibit)(Lauro, John) (Entered: 08/17/2023)
08/21/
MOTION for Leave to File Reply Brief by USA as to DONALD J. TRUMP.
(Attachments: # 1 Text of Proposed Order Proposed Order)(Windom, Thomas)
Page 9 (Entered: 08/21/2023)
08/21/
MINUTE ORDER as to DONALD J. TRUMP: The government's 31 Motion for
Leave to File Reply is hereby GRANTED. The government may file a reply in
support of its brief proposing a trial date by August 22, 2023. The reply brief shall be
limited to six pages. Signed by Judge Tanya S. Chutkan on 8/21/2023. (zjd) (Entered:
08/21/2023)
08/21/
RESPONSE TO ORDER OF THE COURT by USA as to DONALD J. TRUMP re
Order,,,, Set Deadlines,,, Order on Motion for Leave to File,, Set/Reset Deadlines,
(Reply Brief) (Windom, Thomas) (Entered: 08/21/2023)
08/21/
LEAVE TO FILE DENIED−Motion of D.A. Feliciano for Leave to File Amicus
Curiae Brief Supporting Neither Plaintiff Nor Defendant as to DONALD J. TRUMP.
"This document is unavailable as the Court denied its filing. Although Courts have in
rare instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedures nor the Local Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedures course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Motion for Judicial Notice Affidavit of Victor Shorkin
as to DONALD J. TRUMP. This document is unavailable as the Court denied its
filing. "This document is unavailable as the Court denied its filing. Although Courts
have in rare instances exercised their discretion to permit third−party submissions in
criminal cases, neither the Federal Rules of Criminal Procedures nor the Local Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedures course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED−Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "This document is unavailable
as the Court denied its filing. Although Courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases, neither the Federal
Rules of Criminal Procedures nor the Local Rules contemplate the filing of amicus
curiae briefs. At this time, the court does not find it necessary to depart from the
ordinary procedures course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED−Petition for a Writ of Habeas Corpus as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "This document
is unavailable as the Court denied its filing. Although Courts have in rare instances
exercised their discretion to permit third−party submissions in criminal cases, neither
the Federal Rules of Criminal Procedures nor the Local Rules contemplate the filing
of amicus curiae briefs. At this time, the court does not find it necessary to depart
from the ordinary procedures course by permitting this filing".. Signed by Judge
Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Galaxy Bar Association as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "This document is
unavailable as the Court denied its filing. Although Courts have in rare instances
exercised their discretion to permit third−party submissions in criminal cases, neither
the Federal Rules of Criminal Procedures nor the Local Rules contemplate the filing
of amicus curiae briefs. At this time, the court does not find it necessary to depart
Page 10 from the ordinary procedures course by permitting this filing". Signed by Judge Tanya
S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Amicus Curiae in Support of Donald Trump as to
DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"This document is unavailable as the Court denied its filing. Although Courts have in
rare instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedures nor the Local Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedures course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Moton of Former Judges and Senior Legal Officials for
Leave to File an Amicus Curiae Brief in Support of Government Proposed Trial Date
and Schedule as to DONALD J. TRUMP This document is unavailable as the Court
denied its filing. "This document is unavailable as the Court denied its filing.
Although Courts have in rare instances exercised their discretion to permit third−party
submissions in criminal cases, neither the Federal Rules of Criminal Procedures nor
the Local Rules contemplate the filing of amicus curiae briefs. At this time, the court
does not find it necessary to depart from the ordinary procedures course by permitting
this filing". Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered:
08/29/2023)
08/21/
LEAVE TO FILE DENIED− MOTION TO INTERVENE THE OUTCOME OF
CASE AFFECTS DAVID REGINALD HERON AFTER MOTION INTERVENE
GRANTED [DAVID FILE SEPARATE MOTION − RULING TO HIRE
ATTORNEY) as to DONALD J. TRUMP This document is unavailable as the Court
denied its filing. "Even if construed as a motion for leave to file an amicus curiae
brief, the court is not persuaded that filing thissubmission is warranted. Although
courts have in rare instances exercised their discretion to permit third−party
submissions in criminal cases, neither the Federal Rules of Criminal Procedure nor the
Local Criminal Rulescontemplate the filing of amicus curiae briefs. At this time, the
court does not find it necessary to depart from the ordinary procedural course by
permitting this filing". Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj)
(Entered: 10/06/2023)
08/22/
Consent MOTION to Appoint a Classified Information Security Officer by USA as to
DONALD J. TRUMP. (Attachments: # 1 Text of Proposed Order Proposed
Order)(Windom, Thomas) (Entered: 08/22/2023)
08/22/
MINUTE ORDER as to DONALD J. TRUMP: The government's 33 Consent Motion
to Appoint a Classified Information Security Officer is hereby GRANTED. The court
will issue a separate sealed order designating the Officer and any alternate Officers.
Signed by Judge Tanya S. Chutkan on 8/22/2023. (zjd) (Entered: 08/22/2023)
08/22/
Unopposed MOTION for Protective Order Pursuant to the Classified Information
Procedures Act by USA as to DONALD J. TRUMP. (Attachments: # 1 Text of
Proposed Order Proposed CIPA Protective Order)(Windom, Thomas) (Entered:
08/22/2023)
08/22/
ORDER as to DONALD J. TRUMP granting 35 Unopposed MOTION for Protective
Order Pursuant to the Classified Information Procedures Act. Signed by Judge Tanya
S. Chutkan on 8/22/2023. (zjd) (Entered: 08/22/2023)
08/28/
Page 11 Minute Entry for proceedings held before Judge Tanya S. Chutkan: Status Conference
and Hearing Pursuant to Classified Information Procedures Act (CIPA) as to
DONALD J. TRUMP held on 8/28/2023. In the interests of justice (XT), and for the
reasons stated on the record, the Court grants Defendant's 18 Motion for Exclusion of
Time Under Speedy Trial Act. The time from 8/3/2023 through and including
8/28/2023 shall be excluded in computing the date for speedy trial in this case. Jury
Trial in this matter is set for March 4, 2024 at 9:30 AM in Courtroom 9 before Judge
Tanya S. Chutkan. Bond Status of Defendant: appearance waived, remains on
personal recognizance; Court Reporter: Bryan Wayne; Defense Attorneys: John F.
Lauro and Todd Blanche; US Attorneys: Molly G. Gaston and Thomas Windom. (zjd)
(Entered: 08/28/2023)
08/28/
TRANSCRIPT OF 8/28/23 STATUS HEARING in case as to DONALD J. TRUMP
before Judge Tanya S. Chutkan held on August 28, 2023; Page Numbers: 1−61. Date
of Issuance: 8/28/2023. Court Reporter: Bryan A. Wayne. Transcripts may be ordered
by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 9/18/2023. Redacted Transcript Deadline set for 9/28/2023.
Release of Transcript Restriction set for 11/26/2023.(Wayne, Bryan) (Entered:
08/28/2023)
08/28/
09/05/
PRETRIAL ORDER as to DONALD J. TRUMP: Upon consideration of the parties'
Proposed Briefing Schedules 23 30 32 , the court hereby sets the following pretrial
schedule. All pre−trial motions, excluding motions in limine, due 10/9/23, oppositions
due 10/23/23, and replies due 11/6/23. Motions in limine and Suppression Motions
due 12/27/23, oppositions due 1/9/24, and replies due 1/22/24. Not later than 12/4/23,
the government shall provide notice of evidence it intends to offer pursuant to Fed. R.
Evid. 404(b). Parties shall exchange expert witnesses on 12/11/23. Parties shall
exchange exhibit lists by 12/18/23 and file any objections to exhibits by 1/3/24;
replies due 1/9/24. Proposed jury instructions and voir dire questions due 1/15/24.
Parties shall exchange witness lists by 2/19/24. Trial will commence on 3/4/24 at 9:a.m. in Courtroom 9 unless otherwise specified. See Order for additional details and
instructions. Signed by Judge Tanya S. Chutkan on 8/28/2023. (zjd) Modified on
10/6/2023: See 82 Opinion and Order for amendments made to this order.
Modified on 11/7/2023: See 146 Opinion and Order for further amendments to
this order. (zjd). (Entered: 08/28/2023)
VACATED PURSUANT TO MINUTE ORDER FILED 9/5/2023.....MINUTE
ORDER as to DONALD J. TRUMP: The Government's 47 Motion for Leave to File
Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket is
hereby GRANTED. The Clerk of the Court is directed to file under seal the
Page 12 unredacted copy of the Government's Motion (ECF No. 47−1), attaching Exhibit 1 to
the Government's Motion (ECF No. 47−2). The Clerk of the Court is further directed
to file on the public docket the redacted copy of the Government's Motion (ECF No.
47−3), attaching a placeholder sheet for Exhibit 1 to the Motion (ECF No. 47−4), and
the two proposed orders referenced in the Motion (ECF Nos. 47−5 and 47−6). Signed
by Judge Tanya S. Chutkan on 9/5/2023. (zjd) Modified on 9/5/2023 (zjd). (Entered:
09/05/2023)
09/05/
MOTION to Vacate by DONALD J. TRUMP. (Lauro, John) (Entered: 09/05/2023)
09/05/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 48 Motion to
Vacate (Gaston, Molly) (Entered: 09/05/2023)
09/05/
09/11/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's 48 Motion to Vacate is
hereby GRANTED. The court's previous Minute Order of September 5, 2023 is
VACATED. Defendant shall respond to the government's 47 Motion for Leave to File
by September 11, 2023; the government may file a Reply by September 13, 2023.
Any opposition or reply may be filed under seal. Going forward, all motions,
including motions for leave to file, must (1) indicate whether the movant has
conferred with opposing counsel, and (2) state the nonmovant's position on the
motion, if known. As it has done here, the court may require briefing on motions for
leave to file under seal on a timeline shorter than the default periods provided for in
the Local Criminal Rules. However, all such briefing may be filed under seal without
further order of the court. Signed by Judge Tanya S. Chutkan on 9/5/2023. (zjd)
(Entered: 09/05/2023)
09/11/
MOTION for Recusal by DONALD J. TRUMP. (Attachments: # 1 Exhibit Transcript
Excerpt 1, # 2 Exhibit Transcript Excerpt 2)(Lauro, John) (Entered: 09/11/2023)
MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's Motion for Recusal, it is hereby ORDERED that the government shall file any
opposition no later than September 14, 2023, and the defense shall file any reply
within three calendar days from the filing date of the government's opposition. All
other deadlines set by the court remain in effect. Defense counsel is reminded of the
requirement to confer with opposing counsel before filing any motion and to indicate
whether the motion is opposed. See 09/05/2023 Second Minute Order. Future motions
that fail to comply with that requirement may be denied without prejudice. Signed by
Judge Tanya S. Chutkan on 9/11/2023. (zjd) (Entered: 09/11/2023)
09/13/
LEAVE TO FILE DENIED−Application for Relief in a Criminal Case by a Person
not a Party−Applicant Charles E. Hill as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. Signed by Judge Tanya S. Chutkan on
9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED−Application for Relief in a Criminal Case by a Person
not a Party−Applicant Charles E. Hill as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded thatfiling this submission is
warranted. Although courts have in rare instances exercised their discretionto permit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedurenor the Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the courtdoes not find it necessary to depart from the ordinary procedural
course by permitting this filing". Signed by Judge Tanya S. Chutkan on 9/13/2023.
(zhsj) (Entered: 10/06/2023)
Page 13 09/13/
LEAVE TO FILE DENIED− Petition for a Writ of Habeas Corpus Continued
Application to Arrest Protective Order Dated: 8/11/23 as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Even if construed as a
motion for leave to file an amicus curiae brief, the court is not persuaded thatfiling
this submission is warranted. Although courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases, neither the Federal
Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of
amicus curiae briefs. At this time,the court does not find it necessary to depart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED−Letter Regarding Defendant's Right to Attend Trial as to
DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded that filing this submission is warranted. Although courtshave in rare
instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinaryprocedural course by permitting this filing"
Signed by Judge Tanya S. Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED−Motion to Decriminalize as to DONALD J. TRUMP.
This document is unavailable as the Court denied its filing. Signed by Judge Tanya S.
Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED− Petition for Intervention as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Even if construed as a
motion for leave to file an amicus curiae brief, the court is not persuaded that filing
this submission is warranted. Although courts have in rareinstances exercised their
discretion to permit third−partysubmissions in criminal cases, neither the Federal
Rulesof Criminal Procedure nor the Local Criminal Rulescontemplate the filing of
amicus curiae briefs. At thistime, the court does not find it necessary to depart
fromthe ordinary procedural course by permitting this filing". Signed by Judge Tanya
S. Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/14/
MOTION FOR BRIEFING SCHEDULE as to DONALD J. TRUMP. (Lauro, John)
Modified on 9/15/2023 (zhsj). (Entered: 09/14/2023)
09/14/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 50 Motion for
Recusal (Gaston, Molly) (Entered: 09/14/2023)
09/15/
Opinion and Order as to DONALD J. TRUMP granting the government's 47 Motion
for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on
Public Docket, and granting in part and denying in part Defendant's 53 Motion for
Briefing Schedule. Defendant shall file any Opposition to the government's
substantive Motion by September 25, 2023, and the government shall file any Reply
by September 30, 2023. The Clerk of the Court is directed to file under seal the
unredacted copy of the government's substantive Motion (ECF No. 47−1), attaching
Exhibit 1 to the that Motion (ECF No. 47−2) under seal as well. The Clerk of the
Court is further directed to file on the public docket the redacted copy of the
government's Motion (ECF No. 47−3), attaching a placeholder sheet for Exhibit 1 to
the Motion (ECF No. 47−4), and attaching the two proposed orders referenced in the
Motion (ECF Nos. 47−5 and 47−6). Finally, the Clerk of the Court is directed to
unseal Defendant's motion, ECF No. 53. See Order for details. Signed by Judge Tanya
Page 14 S. Chutkan on 9/15/2023. (zjd) (Entered: 09/15/2023)
09/15/
MOTION to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings
by USA as to DONALD J. TRUMP. (Attachments: # 1 Exhibit, # 2 Text of Proposed
Order Exhibit 47−5, # 3 Text of Proposed Order Exhibit 47−6) (zhsj) (Attachment replaced on 9/21/2023) (zhsj). (Entered: 09/15/2023)
09/17/
REPLY in Support by DONALD J. TRUMP re 50 MOTION for Recusal (Lauro,
John) (Entered: 09/17/2023)
09/25/
NOTICE of Filing by USA as to DONALD J. TRUMP (Attachments: # 1 Cover
Sheet)(Gaston, Molly) (Entered: 09/25/2023)
09/25/
Memorandum in Opposition by DONALD J. TRUMP re 57 Motion for Miscellaneous
Relief, (Lauro, John) (Entered: 09/25/2023)
09/27/
MEMORANDUM OPINION and ORDER as to DONALD J. TRUMP denying Defendant's Motion for Recusal of District Judge Pursuant to 28 U.S.C. § 455(a). See
attached memorandum opinion and order for full details. Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zjd) (Entered: 09/27/2023)
09/27/
MOTION for Extension of Time to File CIPA Sect. 5 and response to ex parte notice
by DONALD J. TRUMP. (Blanche, Todd) (Entered: 09/27/2023)
09/27/
LEAVE TO FILE DENIED− Petition for Writ of Error Corum Noblis and
Memorandum of Law in Support Thereof as to DONALD J. TRUMP. This document
is unavailable as the Court denied its filing. "Even if construed as a motion for leave
to file an amicus curiae brief, the court is not persuaded that filing this submission is
warranted. Although courts have in rare instances exercised their discretion to permit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure nor the Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the court does not find it necessary to depart from the ordinary
procedural course by permitting this filing". Signed by Judge Tanya S. Chutkan on
9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED−Motion to Intervene as to DONALD J. TRUMP. This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicus curiae brief, the court is not persuaded that filing this
submission is warranted. Although courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases,neither the Federal
Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of
amicus curiae briefs. At this time, the court does notfind it necessary to depart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Application for Relief in a Criminal Case by a Person
not a Party−Applicant Charles E. Hill as to DONALD J. TRUMP. This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded that filing this submission is
warranted. Although courts have in rare instances exercised their discretion to permit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure nor the Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the court does not find it necessary to depart from the ordinary
procedural course by permitting this filing". Signed by Judge Tanya S. Chutkan on
9/27/2023. (zhsj) (Entered: 10/05/2023)
Page 15 09/27/
LEAVE TO FILE DENIED−Motion for Reconsideration of Order Date 8/21/2023 as
to DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded that filing this submission is warranted. Although courts have in rare
instances exercised their discretion to permit third−partysubmissions in criminal
cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedural course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicus curiae brief, the court is not persuaded that filing this
submission is warranted. Although courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases, neither the Federal
Rules of Criminal Procedure nor the Local Criminal Rulescontemplate the filing of
amicus curiae briefs. At this time, the court does not find it necessary to depart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Motion of D.A. Feliciano for Leave to File Amicus
Curiae Brief Supporting Neither Plaintiff Nor Defendant as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Although courts have in
rare instances exercised theirdiscretion to permit third−party submissions in
criminalcases, neither the Federal Rules of Criminal Procedure northe Local Criminal
Rules contemplate the filing of amicuscuriae briefs. At this time, the court does not
find it necessaryto depart from the ordinary procedural course by permittingthis
filing". Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− New Motion to Intervene−New Fresh Most Recent
Evidence Relate 6/4/2009 &11/4/2008 as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded thatfiling this submission is
warranted. Although courts have in rare instances exercised their discretion topermit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure northe Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the court does notfind it necessary to depart from the ordinary procedural
course by permitting this filing".. Signed by Judge Tanya S. Chutkan on 9/27/2023.
(zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Petition for Writ of Error Coram Nobis as to DONALD
J. TRUMP This document is unavailable as the Court denied its filing. "Even if
construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded that filing this submission is warranted. Although courts have in rare
instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedural course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. Even if construed as a motion
for leave to file anamicus curiae brief, the court is not persuaded thatfiling this
Page 16 submission is warranted. Although courtshave in rare instances exercised their
discretion topermit third−party submissions in criminal cases,neither the Federal
Rules of Criminal Procedure northe Local Criminal Rules contemplate the filing
ofamicus curiae briefs. At this time, the court does notfind it necessary to depart from
the ordinaryprocedural course by permitting this filing." Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Proof of Service as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicuscuriae brief, the court is not persuaded that filing
thissubmission is warranted. Although courts have in rareinstances exercised their
discretion to permit third−partysubmissions in criminal cases, neither the Federal
Rulesof Criminal Procedure nor the Local Criminal Rulescontemplate the filing of
amicus curiae briefs. At thistime, the court does not find it necessary to depart
fromthe ordinary procedural course by permitting this filing".. Signed by Judge Tanya
S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion for Reconsideration of Order Date 8/21/2023 as
to DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicuscuriae brief, the court is not
persuaded that filing thissubmission is warranted. Although courts have in
rareinstances exercised their discretion to permit third−partysubmissions in criminal
cases, neither the Federal Rulesof Criminal Procedure nor the Local Criminal
Rulescontemplate the filing of amicus curiae briefs. At thistime, the court does not
find it necessary to depart fromthe ordinary procedural course by permitting this
filing". Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. Even if construed as a motion
for leave to file anamicus curiae brief, the court is not persuaded thatfiling this
submission is warranted. Although courtshave in rare instances exercised their
discretion topermit third−party submissions in criminal cases,neither the Federal
Rules of Criminal Procedure northe Local Criminal Rules contemplate the filing
ofamicus curiae briefs. At this time, the court doesnot find it necessary to depart from
the ordinaryprocedural course by permitting this filing." Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion of D.A. Feliciano for Leave to File Amicus
Curiae Brief Supporting Neither Plaintiff Nor Defendant as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Although courts have in
rare instances exercised theirdiscretion to permit third−party submissions in
criminalcases, neither the Federal Rules of Criminal Procedure northe Local Criminal
Rules contemplate the filing of amicuscuriae briefs. At this time, the court does not
find it necessaryto depart from the ordinary procedural course by permittingthis
filing." Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− New Motion to Intervene−New Fresh Most Recent
Evidence Relate 6/4/2009 &11/4/2008 as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded thatfiling this submission is
warranted. Although courts have in rare instances exercised their discretion topermit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure northe Local Criminal Rules contemplate the filing of amicus curiae briefs.
Page 17 At this time, the court does notfind it necessary to depart from the ordinary procedural
course by permitting this filing". Signed by Judge Tanya S. Chutkan on 9/27/2023.
(zhsj) (Entered: 10/09/2023)
09/28/
MOTION for Extension of Time to File Pretrial Motions by DONALD J. TRUMP.
(Lauro, John) (Entered: 09/28/2023)
09/28/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by
October 3, 2023, the government shall file any opposition to both Defendant's Motion for Access to CIPA § 4 Filing and an Adjournment of the CIPA § 5 Deadline
and Defendant's 63 Motion for Extension of Time to File Pretrial Motions; and that
the defense shall file any reply within three calendar days from the filing date of the
government's opposition. Signed by Judge Tanya S. Chutkan on 9/28/2023. (zjd)
(Entered: 09/28/2023)
09/29/
MINUTE ORDER as to DONALD J. TRUMP: The court hereby schedules a hearing
on the government's 57 Motion to Ensure that Extrajudicial Statements Do Not
Prejudice These Proceedings on October 16, 2023 at 10:00 AM in Courtroom 9. The
requirement of Defendant's appearance is waived for this hearing. Signed by Judge
Tanya S. Chutkan on 9/29/2023. (zjd) (Entered: 09/29/2023)
09/29/
REPLY in Support by USA as to DONALD J. TRUMP re 57 MOTION to Ensure that
Extrajudicial Statements Do Not Prejudice these Proceedings (Gaston, Molly)
(Entered: 09/29/2023)
10/02/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 62 Motion for
Extension of Time to File CIPA Section 5 and Response to Ex Parte Notice (Windom,
Thomas) (Entered: 10/02/2023)
10/02/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 63 Motion for
Extension of Time to File Pretrial Motions (Windom, Thomas) (Entered: 10/02/2023)
10/03/
MINUTE ORDER as to DONALD J. TRUMP: By October 10, 2023, defense counsel
John F. Lauro and Gregory M. Singer shall initiate and complete all security clearance
tasks as directed by the Litigation Security Group of the U.S. Department of Justice,
and thereafter file a Notice of Compliance by October 11, 2023. The Notice shall also
state whether the defense anticipates that any other of its members, whose assistance
is reasonably required, will need to obtain a security clearance. Signed by Judge
Tanya S. Chutkan on 10/3/2023. (zjd) (Entered: 10/03/2023)
10/03/
Set/Reset Deadlines as to DONALD J. TRUMP: Notice of Compliance due by
10/11/2023. (mac) (Entered: 10/03/2023)
10/04/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that court will
hold an ex parte Classified Information Procedures Act hearing with the defense at a
time and place arranged with defense counsel. Signed by Judge Tanya S. Chutkan on
10/4/2023. (zjd) (Entered: 10/04/2023)
10/05/
MOTION to Dismiss Case by DONALD J. TRUMP. (Lauro, John) (Entered:
10/05/2023)
10/05/
REPLY in Support by DONALD J. TRUMP re 63 MOTION for Extension of Time to
File Pretrial Motions (Lauro, John) (Entered: 10/05/2023)
10/05/
REPLY in Support by DONALD J. TRUMP re 62 MOTION for Extension of Time to
File CIPA Sect. 5 and response to ex parte notice (Lauro, John) (Entered: 10/05/2023)
Page 18 10/06/
OPINION and ORDER as to DONALD J. TRUMP granting in part and denying in
part Defendant's 62 Motion for Access to CIPA § 4 Filing and An Adjournment of the
CIPA § 5 Deadline; granting in part and denying in part Defendant's 63 Motion for
Extension of Time to File Pretrial Motions; and amending in part the court's Pretrial Order. Defense objections to ex parte nature of government's CIPA § submission due October 11, 2023; government response due October 18, 2023.
Defense CIPA § 5 notice due on October 26, 2023, with supplemental notices due
within 20 days of receiving access to additional classified discovery materials.
Dispositive motions, including motions to dismiss, due October 23, 2023; oppositions
due within 14 days of motion's filing; replies due within 10 days of opposition's filing.
Rule 17(c) motions and motions to compel due November 9, 2023; oppositions due
November 24, 2023; replies due December 1, 2023. See Opinion & Order for details.
Signed by Judge Tanya S. Chutkan on 10/6/2023. (zjd) Modified on 11/7/2023: See
146 Opinion and Order for amendments to the deadlines set in this opinion and
order. (zjd). (Entered: 10/06/2023)
10/06/
LEAVE TO FILE DENIED− Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third party
could file a notice of appeal in a criminal case which the Federal Rules of Criminal
Procedure and Local Criminal Rules do not contemplate, this filing does not comply
with Rule 3(c) of the Circuit Rules of the U.S. Court of Appeals for the District of
Columbia Circuit". Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj) (Entered:
10/10/2023)
10/06/
LEAVE TO FILE DENIED− Petition for a Writ of Habeas Corpus, Continued Judge
Chutkan Impermissibly Held First Amendment to be Unconstitutional as to DONALD
J. TRUMP This document is unavailable as the Court denied its filing. Even if
construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded thatfiling this submission is warranted. Although courts have in rare
instances exercised their discretionto permit third−party submissions in criminal
cases, neither the Federal Rules of CriminalProcedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time,the court does not find it
necessary to depart from the ordinary procedural course by permittingthis filing".
Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj) (Entered: 10/10/2023)
10/09/
MOTION for Leave to Appear Pro Hac Vice Emil Bove Filing fee $ 100, receipt
number ADCDC−10406576. Fee Status: Fee Paid. by DONALD J. TRUMP. (Lauro,
John) (Entered: 10/09/2023)
10/10/
LEAVE TO FILE DENIED− Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third
partycould file a notice of appeal in acriminal cases, which theFederal Rules of
CriminalProcedure and and LocalCriminal Rules do notcontemplate, this filing does
notcomply with Rule 3(c) of theCircuit Rules of the U.S. Courtof Appeals for the
District ofColumbia Circuit".. Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj)
(Entered: 10/10/2023)
10/10/
LEAVE TO FILE DENIED− Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third
partycould file a notice of appeal in acriminal cases, which theFederal Rules of
CriminalProcedure and and LocalCriminal Rules do notcontemplate, this filing does
notcomply with Rule 3(c) of theCircuit Rules of the U.S. Courtof Appeals for the
District ofColumbia Circuit".. Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj)
Page 19 (Entered: 10/10/2023)
10/10/
MOTION for Order for Fair and Protective Jury Procedures by USA as to DONALD
J. TRUMP. (Gaston, Molly) (Entered: 10/10/2023)
10/10/
MOTION for Formal Pretrial Notice of the Defendant's Intent to Rely on
Advice−of−Counsel Defense by USA as to DONALD J. TRUMP. (Attachments: # Text of Proposed Order)(Windom, Thomas) (Entered: 10/10/2023)
10/10/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by
October 20, 2023, the defense shall file any opposition to the government's 97 Motion
for Fair and Protective Jury Procedures and 98 Motion for Formal Pretrial Notice of
the Defendant's Intent to Rely on Advice−of−Counsel Defense; and that the
government shall file any reply in support of those motions by October 25, 2023.
Signed by Judge Tanya S. Chutkan on 10/10/2023. (zjd) (Entered: 10/10/2023)
10/11/
MINUTE ORDER as to DONALD J. TRUMP: Granting 85 Motion for Leave to
Appear Pro Hac Vice. Emil Bove is hereby admitted pro hac vice to appear in this
matter on behalf of Defendant. Counsel should register for e−filing via PACER
and file a notice of appearance pursuant to LCrR 44.5(a). Click for instructions.
Signed by Judge Tanya S. Chutkan on 10/11/2023. (zjd) (Entered: 10/11/2023)
10/11/
10/11/
MOTION for Discovery (PRE−TRIAL RULE 17(c) SUBPOENAS) by DONALD J.
TRUMP. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit,
# 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Lauro,
John) (Entered: 10/11/2023)
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by
October 25, 2023, the government shall file any opposition to Defendant's 99 Motion
for Pre−Trial Rule 17(c) Subpoenas; and the defense shall file any reply in support of
its motion by November 1, 2023. Signed by Judge Tanya S. Chutkan on 10/11/2023.
(zjd) (Entered: 10/11/2023)
10/11/
NOTICE of Compliance by DONALD J. TRUMP re Order,,, Set Deadlines,, (Lauro,
John) (Entered: 10/11/2023)
10/11/
MOTION to Access CIPA Section 4 Filing by DONALD J. TRUMP. (Blanche, Todd)
(Entered: 10/11/2023)
10/13/
NOTICE OF ATTORNEY APPEARANCE: Emil Bove appearing for DONALD J.
TRUMP (Bove, Emil) (Entered: 10/13/2023)
10/16/
10/16/
Minute Entry for proceedings held before Judge Tanya S. Chutkan: Motion Hearing
as to DONALD J. TRUMP held on 10/16/2023 re 57 Motion to Ensure that
Extrajudicial Statements Do Not Prejudice These Proceedings. Order forthcoming.
Bond Status of Defendant: appearance waived, remains on personal recognizance;
Court Reporter: Bryan Wayne; Defense Attorneys: John F. Lauro and Todd Blanche;
US Attorneys: Molly G. Gaston and Thomas Windom. (zjd) (Entered: 10/16/2023)
TRANSCRIPT OF MOTION HEARING in case as to DONALD J. TRUMP before
Judge Tanya S. Chutkan held on October 16, 2023; Page Numbers: 1−86. Date of
Issuance: 10/16/2023. Court Reporter: Bryan A. Wayne. Transcripts may be ordered
by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
Page 20 After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 11/6/2023. Redacted Transcript Deadline set for 11/16/2023.
Release of Transcript Restriction set for 1/14/2024.(Wayne, Bryan) (Entered:
10/16/2023)
10/16/
NOTICE OF ATTORNEY APPEARANCE James Pearce appearing for USA.
(Pearce, James) (Main Document 104 replaced on 10/17/2023) (zhsj). (Entered:
10/16/2023)
10/17/
OPINION and ORDER as to DONALD J. TRUMP: Granting in part and denying in
part the government's 57 Motion to Ensure that Extrajudicial Statements Do Not
Prejudice These Proceedings; and denying as moot the government's sealed Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings.
Signed by Judge Tanya S. Chutkan on 10/17/2023. (zjd) Modified on 10/20/2023:
Opinion and Order administratively stayed pursuant to Minute Order filed 10/20/(zjd). Modified on 10/29/2023: Administrative stay lifted pursuant to 124 Opinion and
Order (zjd). (Entered: 10/17/2023)
10/17/
NOTICE OF APPEAL (Interlocutory) by DONALD J. TRUMP re 105 Memorandum
Opinion,, Order,. Filing fee $ 505, receipt number ADCDC−10425241. Fee Status:
Fee Paid. Parties have been notified. (Lauro, John) (Entered: 10/17/2023)
10/18/
Transmission of the Notice of Appeal, 105 Opinion and Order, and Docket Sheet to
US Court of Appeals. The Court of Appeals fee was paid on 10/17/2023 as to
DONALD J. TRUMP re 106 Notice of Appeal − Interlocutory. (zhsj) (Entered:
10/18/2023)
10/18/
USCA Case Number as to DONALD J. TRUMP 23−3190 for 106 Notice of Appeal −
Interlocutory filed by DONALD J. TRUMP. (zhsj) (Entered: 10/18/2023)
10/18/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 101 Motion to
Access CIPA Section 4 Filing (Windom, Thomas) (Entered: 10/18/2023)
10/19/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 74 Motion to
Dismiss Case (Pearce, James) (Entered: 10/19/2023)
10/20/
MOTION to Stay Pending Appeal, Request for Temporary Administrative Stay, and
Memorandum in Support by DONALD J. TRUMP. (Lauro, John) (Entered:
10/20/2023)
10/20/
MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's
opposed 110 Motion for Stay Pending Appeal, Request for Temporary Administrative
Stay, and Memorandum in Support, it is hereby ORDERED that the court's Opinion and Order is administratively STAYED to permit the parties' briefing and the
court's consideration of Defendant's Motion. It is FURTHER ORDERED that the
government shall file any opposition to Defendant's Motion by October 25, 2023, and
Page 21 that Defendant shall file any Reply by October 28, 2023. Signed by Judge Tanya S.
Chutkan on 10/20/2023. (zjd) (Entered: 10/20/2023)
10/20/
RESPONSE by DONALD J. TRUMP re 97 MOTION for Order for Fair and
Protective Jury Procedures (Lauro, John) (Entered: 10/20/2023)
10/20/
RESPONSE by DONALD J. TRUMP re 98 MOTION for Formal Pretrial Notice of
the Defendant's Intent to Rely on Advice−of−Counsel Defense (Lauro, John)
(Entered: 10/20/2023)
10/23/
MOTION to Dismiss Case Based on Constitutional Grounds by DONALD J.
TRUMP. (Lauro, John) (Entered: 10/23/2023)
10/23/
MOTION to Dismiss Case Based on Statutory Grounds by DONALD J. TRUMP.
(Lauro, John) (Entered: 10/23/2023)
10/23/
MOTION to Strike Inflammatory Allegations From the Indictment by DONALD J.
TRUMP. (Lauro, John) (Entered: 10/23/2023)
10/23/
MOTION to Dismiss Case for Selective and Vindictive Prosecution by DONALD J.
TRUMP. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit
Exhibit 3, # 4 Exhibit Exhibit 4)(Bove, Emil) (Entered: 10/23/2023)
10/25/
REPLY in Support by USA as to DONALD J. TRUMP re 97 MOTION for Order for
Fair and Protective Jury Procedures (Attachments: # 1 Text of Proposed
Order)(Gaston, Molly) (Entered: 10/25/2023)
10/25/
REPLY in Support by USA as to DONALD J. TRUMP re 98 MOTION for Formal
Pretrial Notice of the Defendant's Intent to Rely on Advice−of−Counsel Defense
(Windom, Thomas) (Entered: 10/25/2023)
10/25/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 99 Motion for
Discovery, (Windom, Thomas) (Entered: 10/25/2023)
10/25/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 110 Motion to
Stay (Gaston, Molly) (Entered: 10/25/2023)
10/26/
NOTICE of CIPA § 5 Filing and Objection to Unauthorized Deletions of Classified
Information by DONALD J. TRUMP (Blanche, Todd) (Entered: 10/26/2023)
10/26/
REPLY in Support by DONALD J. TRUMP re 74 MOTION to Dismiss Case (Lauro,
John) (Entered: 10/26/2023)
10/27/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's combined response, if
any, to the 1 Media Coalition's Application for Audiovisual Access to Criminal Trial
Proceedings, filed in Case No. 23−mc−99−TSC, and 1 Application of NBCUniversal
Media, LLC to Permit Video and Audio of Trial in United States v. Donald Trump,
filed in Case No. 23−mc−107−TSC, is due November 10, 2023. It is FURTHER
ORDERED that any response shall be docketed in Case No. 23−mc−99−TSC. Signed
by Judge Tanya S. Chutkan on 10/27/2023. (zjd) (Entered: 10/27/2023)
10/28/
REPLY in Support by DONALD J. TRUMP re 110 MOTION to Stay Pending
Appeal, Request for Temporary Administrative Stay, and Memorandum in Support
(Lauro, John) (Entered: 10/28/2023)
10/29/
OPINION and ORDER as to DONALD J. TRUMP: Denying Defendant's 110 Motion
to Stay Pending Appeal, and lifting the administrative stay imposed by the court's
Page 22 October 20, 2023 Minute Order. Signed by Judge Tanya S. Chutkan on 10/29/2023.
(zjd) (Entered: 10/29/2023)
10/31/
LEAVE TO FILE DENIED− Motion of the American Civil Liberties Union & the
American Civil Liberties Union of the District of Columbia for Leave to File Brief
Amici Curae in Aid of the Court's Re−Evaluation of its Gag Order as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "Although courts
have in rare instances exercised their discretion to permit third−party submissions in
criminal cases, neither the Federal Rules of Criminal Procedure nor the LocalCriminal
Rules contemplate the filing of amicus curiae briefs. At this time,the court does not
find it necessary to depart from the ordinary proceduralcourse by permitting this
filing." Signed by Judge Tanya S. Chutkan on 10/31/2023. (zhsj) (Entered:
10/31/2023)
10/31/
LEAVE TO FILE DENIED− Amicus Declaration in Support of United States
Opposition to Defendant's Motion to Dismiss Dkt 74 Due "Presidential Immunity" as
to DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicus curiae brief, the courtis not
persuaded that filing this submission is warranted. Although courts havein rare
instances exercised their discretion to permit third−party submissionsin criminal
cases, neither the Federal Rules of Criminal Procedure nor theLocal Criminal Rules
contemplate the filing of amicus curiae briefs. At thistime, the court does not find it
necessary to depart from the ordinaryprocedural course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 10/31/2023. (zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Plaintiff's Demand for Default Judgments in Third Party
Joinder Under FRCP, Rule 18(a) and (b) as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded that filing this submission is
warranted. Although courts have in rare instances exercised their discretion to permit
third−party submissions in criminal cases,neither the Federal Rules of Criminal
Procedure northe Local Criminal Rules contemplate the filing ofamicus curiae briefs.
At this time, the court does notfind it necessary to depart from the ordinaryprocedural
course by permitting this filing". Signed by Judge Tanya S. Chutkan on 10/31/2023.
(zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Motion to Withdraw New Motion to Intervene − New
Fresh Most Recent Evidence Relate 6/4/2009 & 11/4/2008 Set June Date Kill Reddie
as to DONALD J. TRUMP This document is unavailable as the Court denied its
filing. "Even if construed as a motion for leaveto file an amicus curiae brief, the court
isnot persuaded that filing this submissionis warranted. Although courts have inrare
instances exercised their discretionto permit third−party submissions incriminal cases,
neither the Federal Rulesof Criminal Procedure nor the LocalCriminal Rules
contemplate the filing ofamicus curiae briefs. At this time, thecourt does not find it
necessary to departfrom the ordinary procedural course bypermitting this filing".
Signed by Judge Tanya S. Chutkan on 10/31/2023. (zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Motion of Former Officials in Five Republican
Administrations, Et Al for Leave to File an Amici Curiae Brief in Opposition to
Defendant's Motion to Dismiss Indictment Based on Presidential Immunity as to
DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Although courts have in rare instancesexercised their discretion to permit
third−partysubmissions in criminal cases, neither theFederal Rules of Criminal
Page 23 Procedure nor theLocal Criminal Rules contemplate the filing ofamicus curiae briefs.
At this time, the courtdoes not find it necessary to depart from theordinary procedural
course by permitting thisfiling". Signed by Judge Tanya S. Chutkan on 10/31/2023.
(zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Pro Se Amicus Curiae re: Defendant's Motion to
Dismiss Indictment Based on Presidential Immunity as to DONALD J. TRUMP. This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicus curiae brief, the court is not persuaded that filing this
submission is warranted. Although courts have in rare instances exercised their
discretion to permit third partysubmissions in criminal cases, neither the Federal
Rules of Criminal Procedure nor the Local CriminalRules contemplate the filing of
amicus curiae briefs. At this time, the court does not find it necessary todepart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 10/31/2023. (zhsj) Modified on 11/3/2023 (zhsj). (Entered: 11/03/2023)
11/01/
OPINION and ORDER as to DONALD J. TRUMP: Granting the government's
Classified Ex Parte, In Camera, and Under Seal Motion for a Protective Order
Pursuant to Section 4 of the Classified Information Procedures Act and Rule 16(d)(1)
of the Federal Rules of Criminal Procedure; and denying Defendant's Motion for
Access to CIPA § 4 Filing, ECF No. 101. See Opinion and Order for details. Signed
by Judge Tanya S. Chutkan on 11/1/2023. (zjd) (Entered: 11/01/2023)
11/01/
REPLY in Support by DONALD J. TRUMP re 99 MOTION for Discovery
(PRE−TRIAL RULE 17(c) SUBPOENAS) (Lauro, John) (Entered: 11/01/2023)
11/01/
MOTION to Stay Case Pending Immunity Determination by DONALD J. TRUMP.
(Lauro, John) (Entered: 11/01/2023)
11/01/
MOTION for Extension of Time to File Motions for Rule 17(c) Subpoenas and
Motions to Compel by DONALD J. TRUMP. (Lauro, John) (Entered: 11/01/2023)
11/02/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that the
government shall file any opposition to Defendant's 129 Motion for Extension of
Time by November 4, 2023; and that Defendant shall file any reply in support of that
Motion by November 6, 2023. Signed by Judge Tanya S. Chutkan on 11/2/2023. (zjd)
(Entered: 11/02/2023)
11/02/
ORDER as to DONALD J. TRUMP: Granting the government's 97 Motion for Fair
and Protective Jury Procedures. See Order for details. Signed by Judge Tanya S.
Chutkan on 11/2/2023. (zjd) (Entered: 11/02/2023)
11/03/
MOTION for Leave to File Oversized Brief by USA as to DONALD J. TRUMP.
(Windom, Thomas) (Entered: 11/03/2023)
11/03/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that
Defendant shall file any opposition to the government's 136 Motion for Leave to File
Oversized Brief by 7:00 PM on November 4, 2023. This will allow the court to rule
on the Motion in advance of the November 6, 2023 deadline for the brief in question.
Signed by Judge Tanya S. Chutkan on 11/3/2023. (zjd) (Entered: 11/03/2023)
11/03/
11/04/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 129 Motion for
Extension of Time to File Pretrial Motions Related to Discovery and Subpoenas
(Windom, Thomas) (Entered: 11/03/2023)
Page 24 RESPONSE by DONALD J. TRUMP re 136 MOTION for Leave to File Oversized
Brief (Lauro, John) (Entered: 11/04/2023)
11/05/
MINUTE ORDER as to DONALD J. TRUMP: The government's 136 Motion for
Leave to File Oversized Brief is hereby GRANTED. The government may submit a
combined opposition brief to Defendant's 113 Motion to Dismiss Based on
Constitutional Grounds and 114 Motion to Dismiss Based on Statutory Grounds. The
brief may not exceed 90 pages in total. The discussion of each Motion therein shall
not exceed 45 pages. Signed by Judge Tanya S. Chutkan on 11/5/2023. (zjd) (Entered:
11/05/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 113 Motion to
Dismiss Case, 114 Motion to Dismiss Case (Pearce, James) (Entered: 11/06/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 115 Motion to
Strike (Gaston, Molly) (Entered: 11/06/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 116 Motion to
Dismiss Case for Selective and Vindictive Prosecution (Windom, Thomas) (Entered:
11/06/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 128 Motion to
Stay (Gaston, Molly) (Entered: 11/06/2023)
11/06/
NOTICE OF ATTORNEY APPEARANCE John M. Pellettieri appearing for USA.
(Pellettieri, John) (Entered: 11/06/2023)
11/06/
REPLY in Support by DONALD J. TRUMP re 129 MOTION for Extension of Time
to File Motions for Rule 17(c) Subpoenas and Motions to Compel (Lauro, John)
(Entered: 11/06/2023)
11/07/
OPINION and ORDER as to DONALD J. TRUMP: granting in part and denying in
part Defendant's 129 Motion for Extension of Time to File Pretrial Motions Related to
Discovery and Subpoenas. Motions to compel due November 27, 2023; oppositions
due December 11, 2023; replies due December 18, 2023. Rule 17(c) motions due
December 13, 2023; oppositions due December 27, 2023; replies due January 3, 2024.
See Opinion and Order for details. Signed by Judge Tanya S. Chutkan on 11/7/2023.
(zjd) (Entered: 11/07/2023)
11/08/
OPINION and ORDER as to DONALD J. TRUMP: Granting in part and denying in
part the government's Motion for Formal Pretrial Notice of the Defendant's Intent to
Rely on Advice−of−Counsel Defense, ECF No. 98 . See Opinion and Order for
details. Signed by Judge Tanya S. Chutkan on 11/8/2023. (zjd) (Entered: 11/08/2023)
11/08/
ORDER as to DONALD J. TRUMP: By November 22, 2023, the government shall
submit a classified brief responding to the objection set forth in Defendant's classified
CIPA § 5 submission. See Order for details. Signed by Judge Tanya S. Chutkan on
11/8/2023. (zjd) (Entered: 11/08/2023)
11/09/
NOTICE of Filing by USA as to DONALD J. TRUMP (Windom, Thomas) (Entered:
11/09/2023)
11/09/
LEAVE TO FILE DENIED−Motion for Leave to File Amicus as to DONALD J.
TRUMP. This document is unavailable as the Court denied its filing. "Although
courts have in rare instances exercised their discretion to permit third−party
submissions in criminalcases, neither the Federal Rules of Criminal Procedure nor the
Page 25 Local Criminal Rules contemplate the filing ofamicus curiae briefs. At this time, the
court does not find it necessary to depart from the ordinary proceduralcourse by
permitting this filing". Signed by Judge Tanya S. Chutkan on 11/9/2023. (zhsj)
(Entered: 11/14/2023)
11/09/
LEAVE TO FILE DENIED−Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third party
could file a notice of appeal in a criminal cases which the Federal Rules of Criminal
Procedure and Local Criminal Rules do not contemplate, this filing does not comply
with Rule 3(c) of the Circuit Rules of the U.S. Court of Appeals for the District of
Columbia Circuit". Signed by Judge Tanya S. Chutkan on 11/9/2023. (zhsj) (Entered:
11/14/2023)
11/09/
LEAVE TO FILE DENIED−Proof of Service/Notice of Filing as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "Even if
construed as a motion for leave to file an amicus curiae brief, the court is
notpersuaded that filing this submission is warranted. Although courts have in
rareinstances exercised their discretion to permit third−party submissions in
criminalcases, neither the Federal Rules of Criminal Procedure nor the Local Criminal
Rulescontemplate the filing of amicus curiae briefs. At this time, the court does not
find itnecessary to depart from the ordinary procedural course by permitting this
filing". Signed by Judge Tanya S. Chutkan on 9/11/2023. (zhsj) (Entered: 11/14/2023)
11/12/
MOTION for Extension of Time to File Response/Reply as to 116 MOTION to
Dismiss Case for Selective and Vindictive Prosecution, 128 MOTION to Stay Case
Pending Immunity Determination, 115 MOTION to Strike Inflammatory Allegations
From the Indictment, 113 MOTION to Dismiss Case Based on Constitutional
Grounds, 114 MOTION to Dismiss Case Based on Statutory Grounds by DONALD
J. TRUMP. (Lauro, John) (Entered: 11/12/2023)
11/13/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 150 Motion for
Extension of Time to File Response/Reply, (Gaston, Molly) (Entered: 11/13/2023)
11/13/
ORDER as to DONALD J. TRUMP: Granting in part and denying in part Defendant's
150 Motion for Extension of Time to File Reply Briefs. Defendant may file any Reply
in support of his motions to dismiss based on 113 constitutional, 114 statutory, and
116 selective prosecution grounds by November 22, 2023; and Defendant may file
any Reply in support of his pending 115 Motion to Strike and 128 Motion to Stay by
November 15, 2023. Signed by Judge Tanya S. Chutkan on 11/13/2023. (zjd)
(Entered: 11/13/2023)
11/15/
REPLY in Support by DONALD J. TRUMP re 115 MOTION to Strike Inflammatory
Allegations From the Indictment (Lauro, John) (Entered: 11/15/2023)
11/15/
REPLY in Support by DONALD J. TRUMP re 128 MOTION to Stay Case Pending
Immunity Determination (Lauro, John) (Entered: 11/15/2023)
11/17/
OPINION and ORDER as to DONALD J. TRUMP: Denying Defendant's 115 Motion
to Strike Inflammatory Allegations From the Indictment. See Opinion and Order for
details. Signed by Judge Tanya S. Chutkan on 11/17/2023. (zjd) (Entered:
11/17/2023)
11/21/
Unopposed MOTION for Extension of Time to File Response/Reply to the Special
Counsel's Classified CIPA Sec. 5 Motion to Strike by DONALD J. TRUMP.
(Blanche, Todd) (Entered: 11/21/2023)
Page 26 11/21/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's unopposed 159 Motion
for Extension of Time to File Opposition to the Special Counsel's Classified CIPA
Sec. 5 Motion to Strike is hereby GRANTED. Defendant may file any opposition to
the government's Motion to Strike by November 27, 2023. Signed by Judge Tanya S.
Chutkan on 11/21/2023. (zjd) (Entered: 11/21/2023)
11/22/
NOTICE of Filing by USA as to DONALD J. TRUMP (Windom, Thomas) (Entered:
11/22/2023)
11/22/
REPLY in Support by DONALD J. TRUMP re 116 MOTION to Dismiss Case for
Selective and Vindictive Prosecution (Attachments: # 1 Exhibit 1, # 2 Exhibit
2)(Blanche, Todd) (Entered: 11/22/2023)
11/22/
REPLY in Support by DONALD J. TRUMP re 113 MOTION to Dismiss Case Based
on Constitutional Grounds (Lauro, John) (Entered: 11/22/2023)
11/22/
REPLY in Support by DONALD J. TRUMP re 114 MOTION to Dismiss Case Based
on Statutory Grounds (Lauro, John) (Entered: 11/22/2023)
11/22/
LEAVE TO FILE DENIED− Motion for Leave to File Amicus as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "Although courts
have in rare instances exercised their discretion to permit third−party submissions in
criminal cases, neither the Federal Rules of Criminal Procedure nor the Local
Criminal Rules contemplate the filing of amicus curiae briefs. At this time, the court
does not find it necessary to depart from the ordinary procedural course by permitting
this filing". Signed by Judge Tanya S. Chutkan on 11/22/2023. (zhsj) Modified on
11/27/2023 (zhsj). (Entered: 11/27/2023)
11/27/
OPINION and ORDER as to DONALD J. TRUMP: Denying Defendant's 99 Motion
for Pretrial Rule 17(c) Subpoenas. See Opinion and Order for details. Signed by Judge
Tanya S. Chutkan on 11/27/2023. (zjd) (Entered: 11/27/2023)
11/27/
MOTION for Leave to File Under Seal Unredacted Motion and Exhibits by
DONALD J. TRUMP. (Attachments: # 1 PRESIDENT DONALD J. TRUMPS
MOTION FOR AN ORDER REGARDING THE SCOPE OF THE PROSECUTION
TEAM (REDACTED), # 2 Exhibit A, # 3 Exhibit B (redacted), # 4 Exhibit C
(redacted), # 5 Exhibit D, # 6 Exhibit E (redacted), # 7 Exhibit F (redacted), # Exhibit G (redacted), # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, #
13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(Blanche, Todd)
(Entered: 11/27/2023)
11/27/
MOTION to Compel Discovery by DONALD J. TRUMP. (Attachments: # 1 Exhibit
A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Blanche, Todd) (Entered: 11/27/2023)
11/28/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's 166 Motion for Leave to
File Under Seal is hereby GRANTED. The proposed filing contains Sensitive
Materials, which the court has already determined warrant sealing. See Protective
Order, ECF No. 28 . Defendant shall file under seal an unredacted copy of his Motion
for an Order Regarding the Scope of the Prosecution Team, and shall publicly file a
redacted copy of that Motion, by November 29, 2023. The court reminds Defendant
that all motions must indicate whether they are opposed. Going forward, if any party
seeks to make a filing under seal, the party shall file a sealed motion for leave to file
under seal that attaches (1) an unredacted copy of the filing to be docketed under seal,
and (2) a redacted copy of the filing that may be publicly docketed. If the court
Page 27 decides to grant such sealed motions for leave to file under seal, it will then direct the
Clerk of the Court to docket those attached filings under seal and publicly,
respectively. See, e.g., ECF No. 47 (Government's sealed motion for leave to file
under seal); ECF No. 55 (court order granting motion and directing Clerk to docket
filings appropriately); see also Protective Order at 4; Local R. Crim. P. 49(f)(6)(i).
Filings that do not comply with those procedures may be stricken. It is further
ORDERED that the Government shall file any opposition to Defendant's Motion for
an Order Regarding the Scope of the Prosecution Team by December 9, 2023; and
Defendant shall file any Reply in support of that Motion by December 14, 2023. In
addition, the Government shall file any Opposition to Defendant's 167 Motion to
Compel Discovery by December 11, 2023; and Defendant shall file any Reply in
support of that Motion by December 18, 2023. Signed by Judge Tanya S. Chutkan on
11/28/2023. (zjd) (Entered: 11/28/2023)
11/28/
NOTICE Pursuant to CIPA Section 5 by DONALD J. TRUMP (Blanche, Todd)
(Entered: 11/28/2023)
11/29/
REDACTED DOCUMENT by DONALD J. TRUMP of Motion for an Order
Regarding the Scope of the Prosecution Team (Attachments: # 1 Exhibit A, # Exhibit B (redacted), # 3 Exhibit C (redacted), # 4 Exhibit D, # 5 Exhibit E (redacted),
# 6 Exhibit F (redacted), # 7 Exhibit G (redacted), # 8 Exhibit H, # 9 Exhibit I, # Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # Exhibit O)(Blanche, Todd) (Entered: 11/29/2023)
12/01/
MEMORANDUM OPINION as to DONALD J. TRUMP re: Defendant's 74 Motion
to Dismiss Based on Presidential Immunity, and Defendant's 113 Motion to Dismiss
Based on Constitutional Grounds. Signed by Judge Tanya S. Chutkan on 12/1/2023.
(zjd) (Entered: 12/01/2023)
12/01/
ORDER as to DONALD J. TRUMP: Denying Defendant's 74 Motion to Dismiss
Based on Presidential Immunity, and denying Defendant's 113 Motion to Dismiss
Based on Constitutional Grounds. Signed by Judge Tanya S. Chutkan on 12/1/2023.
(zjd) (Entered: 12/01/2023)
12/01/
12/04/
MINUTE ORDER as to DONALD J. TRUMP: In light of the court's 172 Order
denying Defendant's 74 Motion to Dismiss Based on Presidential Immunity;
Defendant's 128 Motion to Stay Case Pending Immunity Determination is hereby
DENIED as moot. Signed by Judge Tanya S. Chutkan on 12/1/2023. (zjd) (Entered:
12/01/2023)
12/05/
12/05/
NOTICE of Filing by USA as to DONALD J. TRUMP (Windom, Thomas) (Entered:
12/04/2023)
MINUTE ORDER as to DONALD J. TRUMP: The Government's unopposed Sealed Motion for Leave to File Unredacted Notice Under Seal and for Entry of
Redacted Notice on Public Docket is hereby GRANTED. The proposed filing
contains Sensitive Materials, which the court has already determined warrant sealing.
See Protective Order, ECF No. 28 . The Clerk of the Court is directed to file under
seal the unredacted copy of the Government's Notice (ECF No. 174−1), and to file on
the public docket the redacted copy of the Government's Notice (ECF No. 174−2).
Signed by Judge Tanya S. Chutkan on 12/5/2023. (zjd) (Entered: 12/05/2023)

NOTICE Pursuant to Federal Rule of Evidence 404(b) by USA as to DONALD J.
TRUMP. (zhsj) (Entered: 12/05/2023)
Page 28 12/07/
NOTICE OF APPEAL (Interlocutory) by DONALD J. TRUMP re 172 Order on
Motion to Dismiss Case, 171 Memorandum Opinion. Filing fee $ 605, receipt number
ADCDC−10543486. Fee Status: Fee Paid. Parties have been notified. (Lauro, John)
(Entered: 12/07/2023)
12/07/
MOTION for Order Regarding Automatic Stay of Proceedings Pending Appeal re Notice of Appeal − Interlocutory by DONALD J. TRUMP. (Blanche, Todd) (Entered:
12/07/2023)
12/07/
NOTICE OF APPEAL (Interlocutory) by DONALD J. TRUMP re 172 Order on
Motion to Dismiss Case, 171 Memorandum Opinion. Filing fee $605, receipt number
ADCDC−10543486. Fee Status: Fee Paid. Parties have been notified. (zhsj) (Entered:
12/07/2023)
12/07/
MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's
178 Motion for Order Regarding Automatic Stay of Proceedings Pending Appeal, it is
hereby ORDERED that the government shall file any opposition to Defendant's
Motion by 5:00 p.m. on Sunday, December 10, 2023, and that Defendant shall file any
Reply by 5:00 p.m. on Tuesday, December 12, 2023. Signed by Judge Tanya S.
Chutkan on 12/7/2023. (zjd) (Entered: 12/07/2023)
Page 29 APPEAL,CAT B
U.S. District Court
District of Columbia (Washington, DC)
CRIMINAL DOCKET FOR CASE #: 1:23−cr−00257−TSC−Case title: USA v. TRUMP
Date Filed: 08/01/
Assigned to: Judge Tanya S.
Chutkan
Appeals court case number:
23−Defendant (1)
DONALD J. TRUMP
represented by John F. Lauro
LAURO & SINGER
400 N. Tampa Street
15th Floor
Tampa, FL (813) 222−Fax: (813) 222−Email: jlauro@laurosinger.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Retained
Emil Bove
BLANCHE LAW
99 Wall Street, Suite New York, NY 212−716−Email: emil.bove@blanchelaw.com
ATTORNEY TO BE NOTICED
Designation: Retained
Filzah I. Pavalon
LAURO & SINGER
400 N. Tampa Street
15th Floor
Tampa, FL (813) 222−Fax: (813) 222−Email: fpavalon@laurosinger.com
PRO HAC VICE
ATTORNEY TO BE NOTICED
Designation: Retained
Todd Blanche
BLANCHE LAW
1
Page 30 99 Wall Street
New York, NY (212) 716−Email: toddblanche@blanchelaw.com
PRO HAC VICE
ATTORNEY TO BE NOTICED
Designation: Pro Hac Vice
Pending Counts
Disposition
18 U.S.C. 371; CONSPIRACY
TO DEFRAUD THE UNITED
STATES; Conspiracy to Defraud
the United States
(1)
18 U.S.C. 1512(k);
TAMPERING WITH WITNESS,
VICTIM, OR AN INFORMANT;
Conspiracy to Obstruct an
Official Proceeding
(2)
18 U.S.C. 1512(c)(2), 2;
TAMPERING WITH A
WITNESS, VICTIM OR
INFORMANT; Obstruction of,
and Attempt to Obstruct, an
Official Proceeding
(3)
18 U.S.C. 241; CONSPIRACY
AGAINST RIGHTS OF
CITIZENS; Conspiracy Against
Rights
(4)
Highest Offense Level
(Opening)
Felony
Terminated Counts
Disposition
None
Highest Offense Level
(Terminated)
None
Complaints
Disposition
None
2
Page 31 Plaintiff
USA
represented by J.P. Cooney
U.S. ATTORNEY'S OFFICE FOR THE
DISTRICT OF COLUMBIA
555 Fourth Street, NW
Washington, DC (202) 252−Email: joseph.cooney@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
James Pearce
U.S. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION APPELLATE
SECTION
Department of Justice, Criminal Division
950 Pennsylvania Ave NW
Suite Washington, DC (202) 532−Fax: (202) 305−Email: james.pearce@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
Molly Gulland Gaston
U.S. ATTORNEY'S OFFICE FOR THE
DISTRICT OF COLUMBIA
555 Fourth Street, NW
Washington, DC (202) 252−Email: molly.gaston@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
Thomas Windom
555 Fourth Street NW
Washington, DC 202−252−Email: thomas.windom@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
John M. Pellettieri
Special Counsel's Office
950 Pennsylvania Avenue NW
3
Page 32 Rm. B−Washington, DC 202−714−Email: john.pellettieri@usdoj.gov
ATTORNEY TO BE NOTICED
Designation: Assistant U.S. Attorney
Date Filed
#
Docket Text
08/01/
INDICTMENT as to DONALD J. TRUMP (1) count(s) 1, 2, 3, 4. (zltp) (Entered:
08/01/2023)
08/01/
MOTION to Seal Case by USA as to DONALD J. TRUMP. (Attachments: # 1 Text
of Proposed Order)(zltp) (Entered: 08/01/2023)
08/01/
ORDER granting 3 Motion to Seal Case as to DONALD J. TRUMP (1). Signed by
Magistrate Judge Moxila A. Upadhyaya on 8/1/2023. (zltp) (Entered: 08/01/2023)
08/01/
Case unsealed as to DONALD J. TRUMP (zltp) (Entered: 08/01/2023)
08/03/
NOTICE OF ATTORNEY APPEARANCE: John F. Lauro appearing for DONALD
J. TRUMP (Lauro, John) (Entered: 08/03/2023)
08/03/
MOTION for Leave to Appear Pro Hac Vice Todd Blanche Filing fee $ 100, receipt
number ADCDC−10252226. Fee Status: Fee Paid. by DONALD J. TRUMP. (Lauro,
John) (Entered: 08/03/2023)
08/03/
Summons Returned Executed on 8/3/2023 as to DONALD J. TRUMP. (ztl) (Entered:
08/04/2023)
08/03/
MINUTE ORDER as to Donald J. Trump: As required by Rule 5(f), the United States
is ordered to produce all exculpatory evidence to the defendant pursuant to Brady v.
Maryland and its progeny. Not doing so in a timely manner may result in sanctions,
including exclusion of evidence, adverse jury instructions, dismissal of charges and
contempt proceedings.Signed by Magistrate Judge Moxila A. Upadhyaya on
8/3/2023. (ztl) (Entered: 08/04/2023)
08/03/
ORAL MOTION for Speedy Trial by USA as to DONALD J. TRUMP. (ztl) (Entered:
08/04/2023)
08/03/
Minute Entry for proceedings held before Magistrate Judge Moxila A. Upadhyaya:
Return on Summons/Initial Appearance/Arraignment as to Counts 1,2,3,4 held on
8/3/2023. Plea of Not Guilty entered as to all counts. The Court advised the
Government of its due process obligation under Rule 5(f).Status Conference set for
8/28/2023 at 10:00 AM in Courtroom 9− In Person before Judge Tanya S. Chutkan.
Bond Status of Defendant: Defendant Remain on Personal Recognizance; Court
Reporter: Jeff Hook; Defense Attorney: John Lauro and Todd Blanche; US Attorney:
Thomas Windom and Molly Gaston; Pretrial Officer: Takeysha Robinson. (ztl)
(Entered: 08/04/2023)
08/03/
MINUTE ORDER as to DONALD J. TRUMP: A status conference will be held in
this matter on August 28, 2023 at 10:00 AM in Courtroom 9 before Judge Tanya S.
Chutkan. The court waives the requirement for Defendant to appear at that
conference. It is hereby ORDERED that Defendant shall file any motion for excluding
the time until the next status conference from the Speedy Trial Act clock by August 8,
4
Page 33 2023; and that the government shall file any opposition to that motion by August 13,
2023. It is FURTHER ORDERED that by August 10, 2023, the government shall file
a brief proposing a trial date and providing an estimate of the time required to set
forth the prosecution's case in chief during that trial; and that by August 17, 2023,
Defendant shall file a response brief likewise proposing a trial date and estimating, to
the extent possible, the time required to set forth the defense at trial. Signed by Judge
Tanya S. Chutkan on 8/3/2023. (ztl) (Entered: 08/04/2023)
08/03/
08/04/
08/04/
ORDER Setting Conditions of Release as to DONALD J. TRUMP (1) Personal
Recognizance. Signed by Magistrate Judge Moxila A. Upadhyaya on 8/3/2023.
(Attachment: # 1 Appearance Bond) (znjb) (Entered: 08/07/2023)
MOTION for Leave to Appear Pro Hac Vice Filzah I. Pavalon Filing fee $ 100,
receipt number ADCDC−10255735. Fee Status: Fee Paid. by DONALD J. TRUMP.
(Lauro, John) (Entered: 08/04/2023)
MOTION for Protective Order by USA as to DONALD J. TRUMP. (Attachments: # Text of Proposed Order)(Gaston, Molly) (Entered: 08/04/2023)
08/05/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by 5:PM on August 7, 2023, Defendant shall file a response to the government's 10 Motion
for Protective Order, stating Defendant's position on the Motion. If Defendant
disagrees with any portion of the government's proposed Protective Order, ECF No.
10−1, his response shall include a revised version of that Protective Order with any
modifications in redline. Signed by Judge Tanya S. Chutkan on 08/05/2023. (lcss)
(Entered: 08/05/2023)
08/05/
MINUTE ORDER as to DONALD J. TRUMP: Granting 9 Motion for Leave to
Appear Pro Hac Vice. Filzah I. Pavalon is hereby admitted pro hac vice to appear in
this matter on behalf of Defendant. Counsel should register for e−filing via PACER
and file a notice of appearance pursuant to LCrR 44.5(a). Click for instructions.
Signed by Judge Tanya S. Chutkan on 08/05/2023. (lcss) (Entered: 08/05/2023)
08/05/
MOTION for Extension of Time to File Response/Reply as to 10 MOTION for
Protective Order , MOTION for Hearing by DONALD J. TRUMP. (Attachments: # Text of Proposed Order)(Lauro, John) (Entered: 08/05/2023)
08/05/
RESPONSE by USA as to DONALD J. TRUMP re 11 MOTION for Extension of
Time to File Response/Reply as to 10 MOTION for Protective Order MOTION for
Hearing (Gaston, Molly) (Entered: 08/05/2023)
08/05/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's 11 Motion for Extension
of Time is hereby DENIED. Defendant may continue to confer with the government
regarding its proposed protective order before or after the August 7, 2023 5:00 PM
deadline for his response. The court will determine whether to schedule a hearing to
discuss the proposed protective order after reviewing Defendant's response and, if
included, his revised proposed protective order with modifications in redline. Signed
by Judge Tanya S. Chutkan on 08/05/2023. (lcss) (Entered: 08/05/2023)
08/06/
Set/Reset Deadline as to DONALD J. TRUMP: Defendant shall file a response to the
government's 10 Motion for Protective Order, stating Defendant's position on the
Motion by 5:00 PM on August 7, 2023. If Defendant disagrees with any portion of the
government's proposed Protective Order, (Dkt. #10−1), his response shall include a
revised version of that Protective Order with any modifications in redline. (jth)
(Entered: 08/06/2023)
5
Page 34 08/07/
RESPONSE by DONALD J. TRUMP re 10 MOTION for Protective Order (Lauro,
John) (Entered: 08/07/2023)
08/07/
REPLY in Support by USA as to DONALD J. TRUMP re 10 MOTION for Protective
Order (Gaston, Molly) (Entered: 08/07/2023)
08/07/
MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the
government's 10 Motion for Protective Order and Defendant's 14 Response, as well as
the government's 15 Reply, the court will schedule a hearing on the parties' respective
proposals. The court will waive the requirement of Defendant's appearance.
Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023,
the parties shall meet and confer and file a joint notice of two dates and times on or
before August 11, 2023 when both parties are available for a hearing. Signed by Judge
Tanya S. Chutkan on 08/07/2023. (lcss) (Entered: 08/07/2023)
08/08/
Set/Reset Deadline as to DONALD J. TRUMP: by 3:00 PM on 8/8/2023, the parties
shall meet and confer and file a joint notice of two dates and times on or before
8/11/2023 when both parties are available for a hearing. (jth) (Entered: 08/08/2023)
08/08/
TRANSCRIPT OF RETURN ON SUMMONS/INITIAL
APPEARANCE/ARRAIGNMENT in case as to DONALD J. TRUMP before
Magistrate Judge Moxila A. Upadhyaya held on August 3, 2023. Page Numbers: 1 −
24. Date of Issuance: August 8, 2023. Court Reporter: Jeff Hook. Contact
Information: 202−354−3373 | jeff_hook@dcd.uscourts.gov. Transcripts may be
ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 8/29/2023. Redacted Transcript Deadline set for 9/8/2023.
Release of Transcript Restriction set for 11/6/2023.(Hook, Jeff) (Entered: 08/08/2023)
08/08/
08/08/
08/08/
NOTICE by the Parties in Response to Court's August 7, 2023 Minute Order by USA
as to DONALD J. TRUMP re Order,, (Gaston, Molly) (Entered: 08/08/2023)
MINUTE ORDER as to DONALD J. TRUMP: The court hereby schedules a hearing
on the parties' respective protective order proposals in this matter on August 11, at 10:00 AM in Courtroom 9. The requirement of Defendant's appearance is waived
for this hearing. Signed by Judge Tanya S. Chutkan on 08/08/2023. (lcc) (Entered:
08/08/2023)

MOTION to Exclude Time Under Speedy Trial Act by DONALD J. TRUMP.
(Attachments: # 1 Text of Proposed Order Granting Motion)(Lauro, John) (Entered:
08/08/2023)
08/09/
6
Page 35 Set/Reset Hearing as to DONALD J. TRUMP: A Hearing on the Parties' Respective
Protective Order Proposals is set for August 11, 2023, at 10:00 AM in Courtroom 9.
before Judge Tanya S. Chutkan. The requirement of Defendant's appearance is waived
for this hearing. (jth) (Entered: 08/09/2023)
08/09/
08/09/
08/09/
ENTERED IN ERROR.....NOTICE Updated Certificate of Good Standing by
DONALD J. TRUMP re 7 MOTION for Leave to Appear Pro Hac Vice Todd
Blanche Filing fee $ 100, receipt number ADCDC−10252226. Fee Status: Fee Paid.
(Lauro, John) Modified on 8/9/2023 (zhsj). (Entered: 08/09/2023)
NOTICE OF ERROR as to DONALD J. TRUMP regarding 19 Notice (Other). The
following error(s) need correction: Incorrect format (Letter)− correspondence is not
permitted (LCrR 49(f)(4)). Please refile as a Notice of Filing attaching your
Certificate of Good Standing to a Notice of Filing Document Containing the Caption
of the Court. (zhsj) (Entered: 08/09/2023)

08/09/
NOTICE of Filing by DONALD J. TRUMP re 7 MOTION for Leave to Appear Pro
Hac Vice Todd Blanche Filing fee $ 100, receipt number ADCDC−10252226. Fee
Status: Fee Paid. (Lauro, John) (Entered: 08/09/2023)
MINUTE ORDER as to DONALD J. TRUMP: Granting 7 Motion for Leave to
Appear Pro Hac Vice Counsel should register for e−filing via PACER and file a
notice of appearance pursuant to LCrR 44.5(a). Click for instructions as to
DONALD J. TRUMP (1). Signed by Magistrate Judge Moxila A. Upadhyaya on
8/9/2023. (zcll) (Entered: 08/09/2023)
08/09/
NOTICE OF ATTORNEY APPEARANCE: Filzah Pavalon appearing for DONALD
J. TRUMP (Pavalon, Filzah) (Entered: 08/09/2023)
08/10/
MOTION for Leave to Appear Pro Hac Vice Gregory M. Singer Filing fee $ 100,
receipt number ADCDC−10266892. Fee Status: Fee Paid. by DONALD J. TRUMP.
(Lauro, John) (Entered: 08/10/2023)
08/10/
RESPONSE TO ORDER OF THE COURT by USA as to DONALD J. TRUMP re
Order,,,, Set Deadlines,,, Government's Response to Court's August 3, 2023 Minute
Order (Gaston, Molly) (Entered: 08/10/2023)
08/10/
MOTION for Hearing Pursuant to Classified Information Procedures Act by USA as
to DONALD J. TRUMP. (Attachments: # 1 Text of Proposed Order)(Windom,
Thomas) (Entered: 08/10/2023)
08/10/
Memorandum in Opposition by USA as to DONALD J. TRUMP re Motion for
Speedy Trial, 18 Motion to Exclude (Gaston, Molly) (Entered: 08/10/2023)
08/10/
08/10/08/10/
MINUTE ORDER as to DONALD J. TRUMP: Granting 22 Motion for Leave to
Appear Pro Hac Vice. Gregory M. Singer is hereby admitted pro hac vice to appear in
this matter on behalf of Defendant. Counsel should register for e−filing via PACER
and file a notice of appearance pursuant to LCrR 44.5(a). Click for instructions.
Signed by Judge Tanya S. Chutkan on 08/10/2023. (lcc) (Entered: 08/10/2023)
NOTICE OF ATTORNEY APPEARANCE: Todd Blanche appearing for DONALD
J. TRUMP (Blanche, Todd) (Entered: 08/10/2023)
MINUTE ORDER as to DONALD J. TRUMP: The government's 24 Sealed Motion
for Leave to Submit Exhibit Ex Parte and Under Seal is hereby DENIED without
prejudice. Signed by Judge Tanya S. Chutkan on 8/10/2023. (zjd) (Entered:
7
Page 36 08/10/2023)
08/11/
Minute Entry for proceedings held before Judge Tanya S. Chutkan: Hearing on the
Parties' Respective Protective Order Proposals as to DONALD J. TRUMP held on
8/11/2023. The Court shall issue a protective order consistent with the rulings made
on the record. Oral Order of the Court granting Government's 25 Motion for Pretrial
Conference Pursuant to the Classified Information Procedures Act. This hearing shall
proceed on August 28, 2023 at 10:00 AM in Courtroom 9 before Judge Tanya S.
Chutkan. Bond Status of Defendant: remains on Personal Recognizance; Court
Reporter: Bryan A. Wayne; Defense Attorneys: John F. Lauro, Gregory M. Singer,
and Todd Blanche; US Attorneys: Thomas Windom and Molly G. Gaston. (zjd)
(Entered: 08/11/2023)
08/11/
MINUTE ORDER as to DONALD J. TRUMP: The government's 25 Motion for
Hearing Pursuant to Classified Information Procedures Act (CIPA) is GRANTED.
Defense counsel consented to the motion during the August 11, 2023 hearing.
Accordingly, the court will hold a hearing pursuant to CIPA Section 2 during the
status conference currently scheduled for August 28, 2023. Signed by Judge Tanya S.
Chutkan on 8/11/2023. (zjd) (Entered: 08/11/2023)
08/11/
PROTECTIVE ORDER GOVERNING DISCOVERY AND AUTHORIZING
DISCLOSURE OF GRAND JURY TESTIMONY as to DONALD J. TRUMP.
Consistent with the rulings made on the record during the hearing on August 11,
2023, the Court grants in part and denies in part the Government's 10 Motion for
Protective Order. Signed by Judge Tanya S. Chutkan on 8/11/2023. (zjd) (Entered:
08/11/2023)
08/11/
TRANSCRIPT OF HEARING ON PROTECTIVE ORDER in case as to DONALD J.
TRUMP before Judge Tanya S. Chutkan held on August 11, 2023; Page Numbers:
1−73. Date of Issuance: 8/11/2023. Court Reporter: Bryan A. Wayne. Transcripts may
be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 9/1/2023. Redacted Transcript Deadline set for 9/11/2023.
Release of Transcript Restriction set for 11/9/2023.(Wayne, Bryan) (Main Document
29 replaced on 8/23/2023) (zhsj). (Entered: 08/11/2023)
08/17/
RESPONSE TO ORDER OF THE COURT by DONALD J. TRUMP re Order,,,, Set
Deadlines,,, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # Exhibit, # 6 Exhibit, # 7 Exhibit)(Lauro, John) (Entered: 08/17/2023)
08/21/
MOTION for Leave to File Reply Brief by USA as to DONALD J. TRUMP.
(Attachments: # 1 Text of Proposed Order Proposed Order)(Windom, Thomas)
8
Page 37 (Entered: 08/21/2023)
08/21/
MINUTE ORDER as to DONALD J. TRUMP: The government's 31 Motion for
Leave to File Reply is hereby GRANTED. The government may file a reply in
support of its brief proposing a trial date by August 22, 2023. The reply brief shall be
limited to six pages. Signed by Judge Tanya S. Chutkan on 8/21/2023. (zjd) (Entered:
08/21/2023)
08/21/
RESPONSE TO ORDER OF THE COURT by USA as to DONALD J. TRUMP re
Order,,,, Set Deadlines,,, Order on Motion for Leave to File,, Set/Reset Deadlines,
(Reply Brief) (Windom, Thomas) (Entered: 08/21/2023)
08/21/
LEAVE TO FILE DENIED−Motion of D.A. Feliciano for Leave to File Amicus
Curiae Brief Supporting Neither Plaintiff Nor Defendant as to DONALD J. TRUMP.
"This document is unavailable as the Court denied its filing. Although Courts have in
rare instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedures nor the Local Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedures course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Motion for Judicial Notice Affidavit of Victor Shorkin
as to DONALD J. TRUMP. This document is unavailable as the Court denied its
filing. "This document is unavailable as the Court denied its filing. Although Courts
have in rare instances exercised their discretion to permit third−party submissions in
criminal cases, neither the Federal Rules of Criminal Procedures nor the Local Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedures course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED−Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "This document is unavailable
as the Court denied its filing. Although Courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases, neither the Federal
Rules of Criminal Procedures nor the Local Rules contemplate the filing of amicus
curiae briefs. At this time, the court does not find it necessary to depart from the
ordinary procedures course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED−Petition for a Writ of Habeas Corpus as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "This document
is unavailable as the Court denied its filing. Although Courts have in rare instances
exercised their discretion to permit third−party submissions in criminal cases, neither
the Federal Rules of Criminal Procedures nor the Local Rules contemplate the filing
of amicus curiae briefs. At this time, the court does not find it necessary to depart
from the ordinary procedures course by permitting this filing".. Signed by Judge
Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Galaxy Bar Association as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "This document is
unavailable as the Court denied its filing. Although Courts have in rare instances
exercised their discretion to permit third−party submissions in criminal cases, neither
the Federal Rules of Criminal Procedures nor the Local Rules contemplate the filing
of amicus curiae briefs. At this time, the court does not find it necessary to depart
9
Page 38 from the ordinary procedures course by permitting this filing". Signed by Judge Tanya
S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Amicus Curiae in Support of Donald Trump as to
DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"This document is unavailable as the Court denied its filing. Although Courts have in
rare instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedures nor the Local Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedures course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered: 08/29/2023)
08/21/
LEAVE TO FILE DENIED− Moton of Former Judges and Senior Legal Officials for
Leave to File an Amicus Curiae Brief in Support of Government Proposed Trial Date
and Schedule as to DONALD J. TRUMP This document is unavailable as the Court
denied its filing. "This document is unavailable as the Court denied its filing.
Although Courts have in rare instances exercised their discretion to permit third−party
submissions in criminal cases, neither the Federal Rules of Criminal Procedures nor
the Local Rules contemplate the filing of amicus curiae briefs. At this time, the court
does not find it necessary to depart from the ordinary procedures course by permitting
this filing". Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj) (Entered:
08/29/2023)
08/21/
LEAVE TO FILE DENIED− MOTION TO INTERVENE THE OUTCOME OF
CASE AFFECTS DAVID REGINALD HERON AFTER MOTION INTERVENE
GRANTED [DAVID FILE SEPARATE MOTION − RULING TO HIRE
ATTORNEY) as to DONALD J. TRUMP This document is unavailable as the Court
denied its filing. "Even if construed as a motion for leave to file an amicus curiae
brief, the court is not persuaded that filing thissubmission is warranted. Although
courts have in rare instances exercised their discretion to permit third−party
submissions in criminal cases, neither the Federal Rules of Criminal Procedure nor the
Local Criminal Rulescontemplate the filing of amicus curiae briefs. At this time, the
court does not find it necessary to depart from the ordinary procedural course by
permitting this filing". Signed by Judge Tanya S. Chutkan on 8/21/2023. (zhsj)
(Entered: 10/06/2023)
08/22/
Consent MOTION to Appoint a Classified Information Security Officer by USA as to
DONALD J. TRUMP. (Attachments: # 1 Text of Proposed Order Proposed
Order)(Windom, Thomas) (Entered: 08/22/2023)
08/22/
MINUTE ORDER as to DONALD J. TRUMP: The government's 33 Consent Motion
to Appoint a Classified Information Security Officer is hereby GRANTED. The court
will issue a separate sealed order designating the Officer and any alternate Officers.
Signed by Judge Tanya S. Chutkan on 8/22/2023. (zjd) (Entered: 08/22/2023)
08/22/
Unopposed MOTION for Protective Order Pursuant to the Classified Information
Procedures Act by USA as to DONALD J. TRUMP. (Attachments: # 1 Text of
Proposed Order Proposed CIPA Protective Order)(Windom, Thomas) (Entered:
08/22/2023)
08/22/
ORDER as to DONALD J. TRUMP granting 35 Unopposed MOTION for Protective
Order Pursuant to the Classified Information Procedures Act. Signed by Judge Tanya
S. Chutkan on 8/22/2023. (zjd) (Entered: 08/22/2023)
08/28/
10
Page 39 Minute Entry for proceedings held before Judge Tanya S. Chutkan: Status Conference
and Hearing Pursuant to Classified Information Procedures Act (CIPA) as to
DONALD J. TRUMP held on 8/28/2023. In the interests of justice (XT), and for the
reasons stated on the record, the Court grants Defendant's 18 Motion for Exclusion of
Time Under Speedy Trial Act. The time from 8/3/2023 through and including
8/28/2023 shall be excluded in computing the date for speedy trial in this case. Jury
Trial in this matter is set for March 4, 2024 at 9:30 AM in Courtroom 9 before Judge
Tanya S. Chutkan. Bond Status of Defendant: appearance waived, remains on
personal recognizance; Court Reporter: Bryan Wayne; Defense Attorneys: John F.
Lauro and Todd Blanche; US Attorneys: Molly G. Gaston and Thomas Windom. (zjd)
(Entered: 08/28/2023)
08/28/
TRANSCRIPT OF 8/28/23 STATUS HEARING in case as to DONALD J. TRUMP
before Judge Tanya S. Chutkan held on August 28, 2023; Page Numbers: 1−61. Date
of Issuance: 8/28/2023. Court Reporter: Bryan A. Wayne. Transcripts may be ordered
by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 9/18/2023. Redacted Transcript Deadline set for 9/28/2023.
Release of Transcript Restriction set for 11/26/2023.(Wayne, Bryan) (Entered:
08/28/2023)
08/28/
09/05/
PRETRIAL ORDER as to DONALD J. TRUMP: Upon consideration of the parties'
Proposed Briefing Schedules 23 30 32 , the court hereby sets the following pretrial
schedule. All pre−trial motions, excluding motions in limine, due 10/9/23, oppositions
due 10/23/23, and replies due 11/6/23. Motions in limine and Suppression Motions
due 12/27/23, oppositions due 1/9/24, and replies due 1/22/24. Not later than 12/4/23,
the government shall provide notice of evidence it intends to offer pursuant to Fed. R.
Evid. 404(b). Parties shall exchange expert witnesses on 12/11/23. Parties shall
exchange exhibit lists by 12/18/23 and file any objections to exhibits by 1/3/24;
replies due 1/9/24. Proposed jury instructions and voir dire questions due 1/15/24.
Parties shall exchange witness lists by 2/19/24. Trial will commence on 3/4/24 at 9:a.m. in Courtroom 9 unless otherwise specified. See Order for additional details and
instructions. Signed by Judge Tanya S. Chutkan on 8/28/2023. (zjd) Modified on
10/6/2023: See 82 Opinion and Order for amendments made to this order.
Modified on 11/7/2023: See 146 Opinion and Order for further amendments to
this order. (zjd). (Entered: 08/28/2023)
VACATED PURSUANT TO MINUTE ORDER FILED 9/5/2023.....MINUTE
ORDER as to DONALD J. TRUMP: The Government's 47 Motion for Leave to File
Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket is
hereby GRANTED. The Clerk of the Court is directed to file under seal the
11
Page 40 unredacted copy of the Government's Motion (ECF No. 47−1), attaching Exhibit 1 to
the Government's Motion (ECF No. 47−2). The Clerk of the Court is further directed
to file on the public docket the redacted copy of the Government's Motion (ECF No.
47−3), attaching a placeholder sheet for Exhibit 1 to the Motion (ECF No. 47−4), and
the two proposed orders referenced in the Motion (ECF Nos. 47−5 and 47−6). Signed
by Judge Tanya S. Chutkan on 9/5/2023. (zjd) Modified on 9/5/2023 (zjd). (Entered:
09/05/2023)
09/05/
MOTION to Vacate by DONALD J. TRUMP. (Lauro, John) (Entered: 09/05/2023)
09/05/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 48 Motion to
Vacate (Gaston, Molly) (Entered: 09/05/2023)
09/05/
09/11/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's 48 Motion to Vacate is
hereby GRANTED. The court's previous Minute Order of September 5, 2023 is
VACATED. Defendant shall respond to the government's 47 Motion for Leave to File
by September 11, 2023; the government may file a Reply by September 13, 2023.
Any opposition or reply may be filed under seal. Going forward, all motions,
including motions for leave to file, must (1) indicate whether the movant has
conferred with opposing counsel, and (2) state the nonmovant's position on the
motion, if known. As it has done here, the court may require briefing on motions for
leave to file under seal on a timeline shorter than the default periods provided for in
the Local Criminal Rules. However, all such briefing may be filed under seal without
further order of the court. Signed by Judge Tanya S. Chutkan on 9/5/2023. (zjd)
(Entered: 09/05/2023)
09/11/
MOTION for Recusal by DONALD J. TRUMP. (Attachments: # 1 Exhibit Transcript
Excerpt 1, # 2 Exhibit Transcript Excerpt 2)(Lauro, John) (Entered: 09/11/2023)
MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's Motion for Recusal, it is hereby ORDERED that the government shall file any
opposition no later than September 14, 2023, and the defense shall file any reply
within three calendar days from the filing date of the government's opposition. All
other deadlines set by the court remain in effect. Defense counsel is reminded of the
requirement to confer with opposing counsel before filing any motion and to indicate
whether the motion is opposed. See 09/05/2023 Second Minute Order. Future motions
that fail to comply with that requirement may be denied without prejudice. Signed by
Judge Tanya S. Chutkan on 9/11/2023. (zjd) (Entered: 09/11/2023)
09/13/
LEAVE TO FILE DENIED−Application for Relief in a Criminal Case by a Person
not a Party−Applicant Charles E. Hill as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. Signed by Judge Tanya S. Chutkan on
9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED−Application for Relief in a Criminal Case by a Person
not a Party−Applicant Charles E. Hill as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded thatfiling this submission is
warranted. Although courts have in rare instances exercised their discretionto permit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedurenor the Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the courtdoes not find it necessary to depart from the ordinary procedural
course by permitting this filing". Signed by Judge Tanya S. Chutkan on 9/13/2023.
(zhsj) (Entered: 10/06/2023)
12
Page 41 09/13/
LEAVE TO FILE DENIED− Petition for a Writ of Habeas Corpus Continued
Application to Arrest Protective Order Dated: 8/11/23 as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Even if construed as a
motion for leave to file an amicus curiae brief, the court is not persuaded thatfiling
this submission is warranted. Although courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases, neither the Federal
Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of
amicus curiae briefs. At this time,the court does not find it necessary to depart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED−Letter Regarding Defendant's Right to Attend Trial as to
DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded that filing this submission is warranted. Although courtshave in rare
instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinaryprocedural course by permitting this filing"
Signed by Judge Tanya S. Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED−Motion to Decriminalize as to DONALD J. TRUMP.
This document is unavailable as the Court denied its filing. Signed by Judge Tanya S.
Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/13/
LEAVE TO FILE DENIED− Petition for Intervention as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Even if construed as a
motion for leave to file an amicus curiae brief, the court is not persuaded that filing
this submission is warranted. Although courts have in rareinstances exercised their
discretion to permit third−partysubmissions in criminal cases, neither the Federal
Rulesof Criminal Procedure nor the Local Criminal Rulescontemplate the filing of
amicus curiae briefs. At thistime, the court does not find it necessary to depart
fromthe ordinary procedural course by permitting this filing". Signed by Judge Tanya
S. Chutkan on 9/13/2023. (zhsj) (Entered: 10/06/2023)
09/14/
MOTION FOR BRIEFING SCHEDULE as to DONALD J. TRUMP. (Lauro, John)
Modified on 9/15/2023 (zhsj). (Entered: 09/14/2023)
09/14/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 50 Motion for
Recusal (Gaston, Molly) (Entered: 09/14/2023)
09/15/
Opinion and Order as to DONALD J. TRUMP granting the government's 47 Motion
for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on
Public Docket, and granting in part and denying in part Defendant's 53 Motion for
Briefing Schedule. Defendant shall file any Opposition to the government's
substantive Motion by September 25, 2023, and the government shall file any Reply
by September 30, 2023. The Clerk of the Court is directed to file under seal the
unredacted copy of the government's substantive Motion (ECF No. 47−1), attaching
Exhibit 1 to the that Motion (ECF No. 47−2) under seal as well. The Clerk of the
Court is further directed to file on the public docket the redacted copy of the
government's Motion (ECF No. 47−3), attaching a placeholder sheet for Exhibit 1 to
the Motion (ECF No. 47−4), and attaching the two proposed orders referenced in the
Motion (ECF Nos. 47−5 and 47−6). Finally, the Clerk of the Court is directed to
unseal Defendant's motion, ECF No. 53. See Order for details. Signed by Judge Tanya
13
Page 42 S. Chutkan on 9/15/2023. (zjd) (Entered: 09/15/2023)
09/15/
MOTION to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings
by USA as to DONALD J. TRUMP. (Attachments: # 1 Exhibit, # 2 Text of Proposed
Order Exhibit 47−5, # 3 Text of Proposed Order Exhibit 47−6) (zhsj) (Attachment replaced on 9/21/2023) (zhsj). (Entered: 09/15/2023)
09/17/
REPLY in Support by DONALD J. TRUMP re 50 MOTION for Recusal (Lauro,
John) (Entered: 09/17/2023)
09/25/
NOTICE of Filing by USA as to DONALD J. TRUMP (Attachments: # 1 Cover
Sheet)(Gaston, Molly) (Entered: 09/25/2023)
09/25/
Memorandum in Opposition by DONALD J. TRUMP re 57 Motion for Miscellaneous
Relief, (Lauro, John) (Entered: 09/25/2023)
09/27/
MEMORANDUM OPINION and ORDER as to DONALD J. TRUMP denying Defendant's Motion for Recusal of District Judge Pursuant to 28 U.S.C. § 455(a). See
attached memorandum opinion and order for full details. Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zjd) (Entered: 09/27/2023)
09/27/
MOTION for Extension of Time to File CIPA Sect. 5 and response to ex parte notice
by DONALD J. TRUMP. (Blanche, Todd) (Entered: 09/27/2023)
09/27/
LEAVE TO FILE DENIED− Petition for Writ of Error Corum Noblis and
Memorandum of Law in Support Thereof as to DONALD J. TRUMP. This document
is unavailable as the Court denied its filing. "Even if construed as a motion for leave
to file an amicus curiae brief, the court is not persuaded that filing this submission is
warranted. Although courts have in rare instances exercised their discretion to permit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure nor the Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the court does not find it necessary to depart from the ordinary
procedural course by permitting this filing". Signed by Judge Tanya S. Chutkan on
9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED−Motion to Intervene as to DONALD J. TRUMP. This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicus curiae brief, the court is not persuaded that filing this
submission is warranted. Although courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases,neither the Federal
Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of
amicus curiae briefs. At this time, the court does notfind it necessary to depart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Application for Relief in a Criminal Case by a Person
not a Party−Applicant Charles E. Hill as to DONALD J. TRUMP. This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded that filing this submission is
warranted. Although courts have in rare instances exercised their discretion to permit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure nor the Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the court does not find it necessary to depart from the ordinary
procedural course by permitting this filing". Signed by Judge Tanya S. Chutkan on
9/27/2023. (zhsj) (Entered: 10/05/2023)
14
Page 43 09/27/
LEAVE TO FILE DENIED−Motion for Reconsideration of Order Date 8/21/2023 as
to DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded that filing this submission is warranted. Although courts have in rare
instances exercised their discretion to permit third−partysubmissions in criminal
cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedural course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicus curiae brief, the court is not persuaded that filing this
submission is warranted. Although courts have in rare instances exercised their
discretion to permit third−party submissions in criminal cases, neither the Federal
Rules of Criminal Procedure nor the Local Criminal Rulescontemplate the filing of
amicus curiae briefs. At this time, the court does not find it necessary to depart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Motion of D.A. Feliciano for Leave to File Amicus
Curiae Brief Supporting Neither Plaintiff Nor Defendant as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Although courts have in
rare instances exercised theirdiscretion to permit third−party submissions in
criminalcases, neither the Federal Rules of Criminal Procedure northe Local Criminal
Rules contemplate the filing of amicuscuriae briefs. At this time, the court does not
find it necessaryto depart from the ordinary procedural course by permittingthis
filing". Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− New Motion to Intervene−New Fresh Most Recent
Evidence Relate 6/4/2009 &11/4/2008 as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded thatfiling this submission is
warranted. Although courts have in rare instances exercised their discretion topermit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure northe Local Criminal Rules contemplate the filing of amicus curiae briefs.
At this time, the court does notfind it necessary to depart from the ordinary procedural
course by permitting this filing".. Signed by Judge Tanya S. Chutkan on 9/27/2023.
(zhsj) (Entered: 10/05/2023)
09/27/
LEAVE TO FILE DENIED− Petition for Writ of Error Coram Nobis as to DONALD
J. TRUMP This document is unavailable as the Court denied its filing. "Even if
construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded that filing this submission is warranted. Although courts have in rare
instances exercised their discretion to permit third−party submissions in criminal
cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time, the court does not find it
necessary to depart from the ordinary procedural course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. Even if construed as a motion
for leave to file anamicus curiae brief, the court is not persuaded thatfiling this
15
Page 44 submission is warranted. Although courtshave in rare instances exercised their
discretion topermit third−party submissions in criminal cases,neither the Federal
Rules of Criminal Procedure northe Local Criminal Rules contemplate the filing
ofamicus curiae briefs. At this time, the court does notfind it necessary to depart from
the ordinaryprocedural course by permitting this filing." Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Proof of Service as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicuscuriae brief, the court is not persuaded that filing
thissubmission is warranted. Although courts have in rareinstances exercised their
discretion to permit third−partysubmissions in criminal cases, neither the Federal
Rulesof Criminal Procedure nor the Local Criminal Rulescontemplate the filing of
amicus curiae briefs. At thistime, the court does not find it necessary to depart
fromthe ordinary procedural course by permitting this filing".. Signed by Judge Tanya
S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion for Reconsideration of Order Date 8/21/2023 as
to DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicuscuriae brief, the court is not
persuaded that filing thissubmission is warranted. Although courts have in
rareinstances exercised their discretion to permit third−partysubmissions in criminal
cases, neither the Federal Rulesof Criminal Procedure nor the Local Criminal
Rulescontemplate the filing of amicus curiae briefs. At thistime, the court does not
find it necessary to depart fromthe ordinary procedural course by permitting this
filing". Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion to Intervene as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. Even if construed as a motion
for leave to file anamicus curiae brief, the court is not persuaded thatfiling this
submission is warranted. Although courtshave in rare instances exercised their
discretion topermit third−party submissions in criminal cases,neither the Federal
Rules of Criminal Procedure northe Local Criminal Rules contemplate the filing
ofamicus curiae briefs. At this time, the court doesnot find it necessary to depart from
the ordinaryprocedural course by permitting this filing." Signed by Judge Tanya S.
Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− Motion of D.A. Feliciano for Leave to File Amicus
Curiae Brief Supporting Neither Plaintiff Nor Defendant as to DONALD J. TRUMP
This document is unavailable as the Court denied its filing. "Although courts have in
rare instances exercised theirdiscretion to permit third−party submissions in
criminalcases, neither the Federal Rules of Criminal Procedure northe Local Criminal
Rules contemplate the filing of amicuscuriae briefs. At this time, the court does not
find it necessaryto depart from the ordinary procedural course by permittingthis
filing." Signed by Judge Tanya S. Chutkan on 9/27/2023. (zhsj) (Entered: 10/09/2023)
09/27/
LEAVE TO FILE DENIED− New Motion to Intervene−New Fresh Most Recent
Evidence Relate 6/4/2009 &11/4/2008 as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded thatfiling this submission is
warranted. Although courts have in rare instances exercised their discretion topermit
third−party submissions in criminal cases, neither the Federal Rules of Criminal
Procedure northe Local Criminal Rules contemplate the filing of amicus curiae briefs.
16
Page 45 At this time, the court does notfind it necessary to depart from the ordinary procedural
course by permitting this filing". Signed by Judge Tanya S. Chutkan on 9/27/2023.
(zhsj) (Entered: 10/09/2023)
09/28/
MOTION for Extension of Time to File Pretrial Motions by DONALD J. TRUMP.
(Lauro, John) (Entered: 09/28/2023)
09/28/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by
October 3, 2023, the government shall file any opposition to both Defendant's Motion for Access to CIPA § 4 Filing and an Adjournment of the CIPA § 5 Deadline
and Defendant's 63 Motion for Extension of Time to File Pretrial Motions; and that
the defense shall file any reply within three calendar days from the filing date of the
government's opposition. Signed by Judge Tanya S. Chutkan on 9/28/2023. (zjd)
(Entered: 09/28/2023)
09/29/
MINUTE ORDER as to DONALD J. TRUMP: The court hereby schedules a hearing
on the government's 57 Motion to Ensure that Extrajudicial Statements Do Not
Prejudice These Proceedings on October 16, 2023 at 10:00 AM in Courtroom 9. The
requirement of Defendant's appearance is waived for this hearing. Signed by Judge
Tanya S. Chutkan on 9/29/2023. (zjd) (Entered: 09/29/2023)
09/29/
REPLY in Support by USA as to DONALD J. TRUMP re 57 MOTION to Ensure that
Extrajudicial Statements Do Not Prejudice these Proceedings (Gaston, Molly)
(Entered: 09/29/2023)
10/02/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 62 Motion for
Extension of Time to File CIPA Section 5 and Response to Ex Parte Notice (Windom,
Thomas) (Entered: 10/02/2023)
10/02/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 63 Motion for
Extension of Time to File Pretrial Motions (Windom, Thomas) (Entered: 10/02/2023)
10/03/
MINUTE ORDER as to DONALD J. TRUMP: By October 10, 2023, defense counsel
John F. Lauro and Gregory M. Singer shall initiate and complete all security clearance
tasks as directed by the Litigation Security Group of the U.S. Department of Justice,
and thereafter file a Notice of Compliance by October 11, 2023. The Notice shall also
state whether the defense anticipates that any other of its members, whose assistance
is reasonably required, will need to obtain a security clearance. Signed by Judge
Tanya S. Chutkan on 10/3/2023. (zjd) (Entered: 10/03/2023)
10/03/
Set/Reset Deadlines as to DONALD J. TRUMP: Notice of Compliance due by
10/11/2023. (mac) (Entered: 10/03/2023)
10/04/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that court will
hold an ex parte Classified Information Procedures Act hearing with the defense at a
time and place arranged with defense counsel. Signed by Judge Tanya S. Chutkan on
10/4/2023. (zjd) (Entered: 10/04/2023)
10/05/
MOTION to Dismiss Case by DONALD J. TRUMP. (Lauro, John) (Entered:
10/05/2023)
10/05/
REPLY in Support by DONALD J. TRUMP re 63 MOTION for Extension of Time to
File Pretrial Motions (Lauro, John) (Entered: 10/05/2023)
10/05/
REPLY in Support by DONALD J. TRUMP re 62 MOTION for Extension of Time to
File CIPA Sect. 5 and response to ex parte notice (Lauro, John) (Entered: 10/05/2023)
17
Page 46 10/06/
OPINION and ORDER as to DONALD J. TRUMP granting in part and denying in
part Defendant's 62 Motion for Access to CIPA § 4 Filing and An Adjournment of the
CIPA § 5 Deadline; granting in part and denying in part Defendant's 63 Motion for
Extension of Time to File Pretrial Motions; and amending in part the court's Pretrial Order. Defense objections to ex parte nature of government's CIPA § submission due October 11, 2023; government response due October 18, 2023.
Defense CIPA § 5 notice due on October 26, 2023, with supplemental notices due
within 20 days of receiving access to additional classified discovery materials.
Dispositive motions, including motions to dismiss, due October 23, 2023; oppositions
due within 14 days of motion's filing; replies due within 10 days of opposition's filing.
Rule 17(c) motions and motions to compel due November 9, 2023; oppositions due
November 24, 2023; replies due December 1, 2023. See Opinion & Order for details.
Signed by Judge Tanya S. Chutkan on 10/6/2023. (zjd) Modified on 11/7/2023: See
146 Opinion and Order for amendments to the deadlines set in this opinion and
order. (zjd). (Entered: 10/06/2023)
10/06/
LEAVE TO FILE DENIED− Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third party
could file a notice of appeal in a criminal case which the Federal Rules of Criminal
Procedure and Local Criminal Rules do not contemplate, this filing does not comply
with Rule 3(c) of the Circuit Rules of the U.S. Court of Appeals for the District of
Columbia Circuit". Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj) (Entered:
10/10/2023)
10/06/
LEAVE TO FILE DENIED− Petition for a Writ of Habeas Corpus, Continued Judge
Chutkan Impermissibly Held First Amendment to be Unconstitutional as to DONALD
J. TRUMP This document is unavailable as the Court denied its filing. Even if
construed as a motion for leave to file an amicus curiae brief, the court is not
persuaded thatfiling this submission is warranted. Although courts have in rare
instances exercised their discretionto permit third−party submissions in criminal
cases, neither the Federal Rules of CriminalProcedure nor the Local Criminal Rules
contemplate the filing of amicus curiae briefs. At this time,the court does not find it
necessary to depart from the ordinary procedural course by permittingthis filing".
Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj) (Entered: 10/10/2023)
10/09/
MOTION for Leave to Appear Pro Hac Vice Emil Bove Filing fee $ 100, receipt
number ADCDC−10406576. Fee Status: Fee Paid. by DONALD J. TRUMP. (Lauro,
John) (Entered: 10/09/2023)
10/10/
LEAVE TO FILE DENIED− Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third
partycould file a notice of appeal in acriminal cases, which theFederal Rules of
CriminalProcedure and and LocalCriminal Rules do notcontemplate, this filing does
notcomply with Rule 3(c) of theCircuit Rules of the U.S. Courtof Appeals for the
District ofColumbia Circuit".. Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj)
(Entered: 10/10/2023)
10/10/
LEAVE TO FILE DENIED− Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third
partycould file a notice of appeal in acriminal cases, which theFederal Rules of
CriminalProcedure and and LocalCriminal Rules do notcontemplate, this filing does
notcomply with Rule 3(c) of theCircuit Rules of the U.S. Courtof Appeals for the
District ofColumbia Circuit".. Signed by Judge Tanya S. Chutkan on 10/6/2023. (zhsj)
18
Page 47 (Entered: 10/10/2023)
10/10/
MOTION for Order for Fair and Protective Jury Procedures by USA as to DONALD
J. TRUMP. (Gaston, Molly) (Entered: 10/10/2023)
10/10/
MOTION for Formal Pretrial Notice of the Defendant's Intent to Rely on
Advice−of−Counsel Defense by USA as to DONALD J. TRUMP. (Attachments: # Text of Proposed Order)(Windom, Thomas) (Entered: 10/10/2023)
10/10/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by
October 20, 2023, the defense shall file any opposition to the government's 97 Motion
for Fair and Protective Jury Procedures and 98 Motion for Formal Pretrial Notice of
the Defendant's Intent to Rely on Advice−of−Counsel Defense; and that the
government shall file any reply in support of those motions by October 25, 2023.
Signed by Judge Tanya S. Chutkan on 10/10/2023. (zjd) (Entered: 10/10/2023)
10/11/
MINUTE ORDER as to DONALD J. TRUMP: Granting 85 Motion for Leave to
Appear Pro Hac Vice. Emil Bove is hereby admitted pro hac vice to appear in this
matter on behalf of Defendant. Counsel should register for e−filing via PACER
and file a notice of appearance pursuant to LCrR 44.5(a). Click for instructions.
Signed by Judge Tanya S. Chutkan on 10/11/2023. (zjd) (Entered: 10/11/2023)
10/11/
10/11/
MOTION for Discovery (PRE−TRIAL RULE 17(c) SUBPOENAS) by DONALD J.
TRUMP. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit,
# 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Lauro,
John) (Entered: 10/11/2023)
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by
October 25, 2023, the government shall file any opposition to Defendant's 99 Motion
for Pre−Trial Rule 17(c) Subpoenas; and the defense shall file any reply in support of
its motion by November 1, 2023. Signed by Judge Tanya S. Chutkan on 10/11/2023.
(zjd) (Entered: 10/11/2023)
10/11/
NOTICE of Compliance by DONALD J. TRUMP re Order,,, Set Deadlines,, (Lauro,
John) (Entered: 10/11/2023)
10/11/
MOTION to Access CIPA Section 4 Filing by DONALD J. TRUMP. (Blanche, Todd)
(Entered: 10/11/2023)
10/13/
NOTICE OF ATTORNEY APPEARANCE: Emil Bove appearing for DONALD J.
TRUMP (Bove, Emil) (Entered: 10/13/2023)
10/16/
10/16/
Minute Entry for proceedings held before Judge Tanya S. Chutkan: Motion Hearing
as to DONALD J. TRUMP held on 10/16/2023 re 57 Motion to Ensure that
Extrajudicial Statements Do Not Prejudice These Proceedings. Order forthcoming.
Bond Status of Defendant: appearance waived, remains on personal recognizance;
Court Reporter: Bryan Wayne; Defense Attorneys: John F. Lauro and Todd Blanche;
US Attorneys: Molly G. Gaston and Thomas Windom. (zjd) (Entered: 10/16/2023)
TRANSCRIPT OF MOTION HEARING in case as to DONALD J. TRUMP before
Judge Tanya S. Chutkan held on October 16, 2023; Page Numbers: 1−86. Date of
Issuance: 10/16/2023. Court Reporter: Bryan A. Wayne. Transcripts may be ordered
by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the
courthouse at a public terminal or purchased from the court reporter referenced above.
19
Page 48 After 90 days, the transcript may be accessed via PACER. Other transcript formats,
(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one
days to file with the court and the court reporter any request to redact personal
identifiers from this transcript. If no such requests are filed, the transcript will be
made available to the public via PACER without redaction after 90 days. The policy,
which includes the five personal identifiers specifically covered, is located on our
website at www.dcd.uscourts.gov.
Redaction Request due 11/6/2023. Redacted Transcript Deadline set for 11/16/2023.
Release of Transcript Restriction set for 1/14/2024.(Wayne, Bryan) (Entered:
10/16/2023)
10/16/
NOTICE OF ATTORNEY APPEARANCE James Pearce appearing for USA.
(Pearce, James) (Main Document 104 replaced on 10/17/2023) (zhsj). (Entered:
10/16/2023)
10/17/
OPINION and ORDER as to DONALD J. TRUMP: Granting in part and denying in
part the government's 57 Motion to Ensure that Extrajudicial Statements Do Not
Prejudice These Proceedings; and denying as moot the government's sealed Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings.
Signed by Judge Tanya S. Chutkan on 10/17/2023. (zjd) Modified on 10/20/2023:
Opinion and Order administratively stayed pursuant to Minute Order filed 10/20/(zjd). Modified on 10/29/2023: Administrative stay lifted pursuant to 124 Opinion and
Order (zjd). (Entered: 10/17/2023)
10/17/
NOTICE OF APPEAL (Interlocutory) by DONALD J. TRUMP re 105 Memorandum
Opinion,, Order,. Filing fee $ 505, receipt number ADCDC−10425241. Fee Status:
Fee Paid. Parties have been notified. (Lauro, John) (Entered: 10/17/2023)
10/18/
Transmission of the Notice of Appeal, 105 Opinion and Order, and Docket Sheet to
US Court of Appeals. The Court of Appeals fee was paid on 10/17/2023 as to
DONALD J. TRUMP re 106 Notice of Appeal − Interlocutory. (zhsj) (Entered:
10/18/2023)
10/18/
USCA Case Number as to DONALD J. TRUMP 23−3190 for 106 Notice of Appeal −
Interlocutory filed by DONALD J. TRUMP. (zhsj) (Entered: 10/18/2023)
10/18/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 101 Motion to
Access CIPA Section 4 Filing (Windom, Thomas) (Entered: 10/18/2023)
10/19/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 74 Motion to
Dismiss Case (Pearce, James) (Entered: 10/19/2023)
10/20/
MOTION to Stay Pending Appeal, Request for Temporary Administrative Stay, and
Memorandum in Support by DONALD J. TRUMP. (Lauro, John) (Entered:
10/20/2023)
10/20/
MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's
opposed 110 Motion for Stay Pending Appeal, Request for Temporary Administrative
Stay, and Memorandum in Support, it is hereby ORDERED that the court's Opinion and Order is administratively STAYED to permit the parties' briefing and the
court's consideration of Defendant's Motion. It is FURTHER ORDERED that the
government shall file any opposition to Defendant's Motion by October 25, 2023, and
20
Page 49 that Defendant shall file any Reply by October 28, 2023. Signed by Judge Tanya S.
Chutkan on 10/20/2023. (zjd) (Entered: 10/20/2023)
10/20/
RESPONSE by DONALD J. TRUMP re 97 MOTION for Order for Fair and
Protective Jury Procedures (Lauro, John) (Entered: 10/20/2023)
10/20/
RESPONSE by DONALD J. TRUMP re 98 MOTION for Formal Pretrial Notice of
the Defendant's Intent to Rely on Advice−of−Counsel Defense (Lauro, John)
(Entered: 10/20/2023)
10/23/
MOTION to Dismiss Case Based on Constitutional Grounds by DONALD J.
TRUMP. (Lauro, John) (Entered: 10/23/2023)
10/23/
MOTION to Dismiss Case Based on Statutory Grounds by DONALD J. TRUMP.
(Lauro, John) (Entered: 10/23/2023)
10/23/
MOTION to Strike Inflammatory Allegations From the Indictment by DONALD J.
TRUMP. (Lauro, John) (Entered: 10/23/2023)
10/23/
MOTION to Dismiss Case for Selective and Vindictive Prosecution by DONALD J.
TRUMP. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit
Exhibit 3, # 4 Exhibit Exhibit 4)(Bove, Emil) (Entered: 10/23/2023)
10/25/
REPLY in Support by USA as to DONALD J. TRUMP re 97 MOTION for Order for
Fair and Protective Jury Procedures (Attachments: # 1 Text of Proposed
Order)(Gaston, Molly) (Entered: 10/25/2023)
10/25/
REPLY in Support by USA as to DONALD J. TRUMP re 98 MOTION for Formal
Pretrial Notice of the Defendant's Intent to Rely on Advice−of−Counsel Defense
(Windom, Thomas) (Entered: 10/25/2023)
10/25/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 99 Motion for
Discovery, (Windom, Thomas) (Entered: 10/25/2023)
10/25/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 110 Motion to
Stay (Gaston, Molly) (Entered: 10/25/2023)
10/26/
NOTICE of CIPA § 5 Filing and Objection to Unauthorized Deletions of Classified
Information by DONALD J. TRUMP (Blanche, Todd) (Entered: 10/26/2023)
10/26/
REPLY in Support by DONALD J. TRUMP re 74 MOTION to Dismiss Case (Lauro,
John) (Entered: 10/26/2023)
10/27/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's combined response, if
any, to the 1 Media Coalition's Application for Audiovisual Access to Criminal Trial
Proceedings, filed in Case No. 23−mc−99−TSC, and 1 Application of NBCUniversal
Media, LLC to Permit Video and Audio of Trial in United States v. Donald Trump,
filed in Case No. 23−mc−107−TSC, is due November 10, 2023. It is FURTHER
ORDERED that any response shall be docketed in Case No. 23−mc−99−TSC. Signed
by Judge Tanya S. Chutkan on 10/27/2023. (zjd) (Entered: 10/27/2023)
10/28/
REPLY in Support by DONALD J. TRUMP re 110 MOTION to Stay Pending
Appeal, Request for Temporary Administrative Stay, and Memorandum in Support
(Lauro, John) (Entered: 10/28/2023)
10/29/
OPINION and ORDER as to DONALD J. TRUMP: Denying Defendant's 110 Motion
to Stay Pending Appeal, and lifting the administrative stay imposed by the court's
21
Page 50 October 20, 2023 Minute Order. Signed by Judge Tanya S. Chutkan on 10/29/2023.
(zjd) (Entered: 10/29/2023)
10/31/
LEAVE TO FILE DENIED− Motion of the American Civil Liberties Union & the
American Civil Liberties Union of the District of Columbia for Leave to File Brief
Amici Curae in Aid of the Court's Re−Evaluation of its Gag Order as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "Although courts
have in rare instances exercised their discretion to permit third−party submissions in
criminal cases, neither the Federal Rules of Criminal Procedure nor the LocalCriminal
Rules contemplate the filing of amicus curiae briefs. At this time,the court does not
find it necessary to depart from the ordinary proceduralcourse by permitting this
filing." Signed by Judge Tanya S. Chutkan on 10/31/2023. (zhsj) (Entered:
10/31/2023)
10/31/
LEAVE TO FILE DENIED− Amicus Declaration in Support of United States
Opposition to Defendant's Motion to Dismiss Dkt 74 Due "Presidential Immunity" as
to DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Even if construed as a motion for leave to file an amicus curiae brief, the courtis not
persuaded that filing this submission is warranted. Although courts havein rare
instances exercised their discretion to permit third−party submissionsin criminal
cases, neither the Federal Rules of Criminal Procedure nor theLocal Criminal Rules
contemplate the filing of amicus curiae briefs. At thistime, the court does not find it
necessary to depart from the ordinaryprocedural course by permitting this filing".
Signed by Judge Tanya S. Chutkan on 10/31/2023. (zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Plaintiff's Demand for Default Judgments in Third Party
Joinder Under FRCP, Rule 18(a) and (b) as to DONALD J. TRUMP This document is
unavailable as the Court denied its filing. "Even if construed as a motion for leave to
file an amicus curiae brief, the court is not persuaded that filing this submission is
warranted. Although courts have in rare instances exercised their discretion to permit
third−party submissions in criminal cases,neither the Federal Rules of Criminal
Procedure northe Local Criminal Rules contemplate the filing ofamicus curiae briefs.
At this time, the court does notfind it necessary to depart from the ordinaryprocedural
course by permitting this filing". Signed by Judge Tanya S. Chutkan on 10/31/2023.
(zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Motion to Withdraw New Motion to Intervene − New
Fresh Most Recent Evidence Relate 6/4/2009 & 11/4/2008 Set June Date Kill Reddie
as to DONALD J. TRUMP This document is unavailable as the Court denied its
filing. "Even if construed as a motion for leaveto file an amicus curiae brief, the court
isnot persuaded that filing this submissionis warranted. Although courts have inrare
instances exercised their discretionto permit third−party submissions incriminal cases,
neither the Federal Rulesof Criminal Procedure nor the LocalCriminal Rules
contemplate the filing ofamicus curiae briefs. At this time, thecourt does not find it
necessary to departfrom the ordinary procedural course bypermitting this filing".
Signed by Judge Tanya S. Chutkan on 10/31/2023. (zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Motion of Former Officials in Five Republican
Administrations, Et Al for Leave to File an Amici Curiae Brief in Opposition to
Defendant's Motion to Dismiss Indictment Based on Presidential Immunity as to
DONALD J. TRUMP This document is unavailable as the Court denied its filing.
"Although courts have in rare instancesexercised their discretion to permit
third−partysubmissions in criminal cases, neither theFederal Rules of Criminal
22
Page 51 Procedure nor theLocal Criminal Rules contemplate the filing ofamicus curiae briefs.
At this time, the courtdoes not find it necessary to depart from theordinary procedural
course by permitting thisfiling". Signed by Judge Tanya S. Chutkan on 10/31/2023.
(zhsj) (Entered: 11/03/2023)
10/31/
LEAVE TO FILE DENIED− Pro Se Amicus Curiae re: Defendant's Motion to
Dismiss Indictment Based on Presidential Immunity as to DONALD J. TRUMP. This
document is unavailable as the Court denied its filing. "Even if construed as a motion
for leave to file an amicus curiae brief, the court is not persuaded that filing this
submission is warranted. Although courts have in rare instances exercised their
discretion to permit third partysubmissions in criminal cases, neither the Federal
Rules of Criminal Procedure nor the Local CriminalRules contemplate the filing of
amicus curiae briefs. At this time, the court does not find it necessary todepart from
the ordinary procedural course by permitting this filing". Signed by Judge Tanya S.
Chutkan on 10/31/2023. (zhsj) Modified on 11/3/2023 (zhsj). (Entered: 11/03/2023)
11/01/
OPINION and ORDER as to DONALD J. TRUMP: Granting the government's
Classified Ex Parte, In Camera, and Under Seal Motion for a Protective Order
Pursuant to Section 4 of the Classified Information Procedures Act and Rule 16(d)(1)
of the Federal Rules of Criminal Procedure; and denying Defendant's Motion for
Access to CIPA § 4 Filing, ECF No. 101. See Opinion and Order for details. Signed
by Judge Tanya S. Chutkan on 11/1/2023. (zjd) (Entered: 11/01/2023)
11/01/
REPLY in Support by DONALD J. TRUMP re 99 MOTION for Discovery
(PRE−TRIAL RULE 17(c) SUBPOENAS) (Lauro, John) (Entered: 11/01/2023)
11/01/
MOTION to Stay Case Pending Immunity Determination by DONALD J. TRUMP.
(Lauro, John) (Entered: 11/01/2023)
11/01/
MOTION for Extension of Time to File Motions for Rule 17(c) Subpoenas and
Motions to Compel by DONALD J. TRUMP. (Lauro, John) (Entered: 11/01/2023)
11/02/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that the
government shall file any opposition to Defendant's 129 Motion for Extension of
Time by November 4, 2023; and that Defendant shall file any reply in support of that
Motion by November 6, 2023. Signed by Judge Tanya S. Chutkan on 11/2/2023. (zjd)
(Entered: 11/02/2023)
11/02/
ORDER as to DONALD J. TRUMP: Granting the government's 97 Motion for Fair
and Protective Jury Procedures. See Order for details. Signed by Judge Tanya S.
Chutkan on 11/2/2023. (zjd) (Entered: 11/02/2023)
11/03/
MOTION for Leave to File Oversized Brief by USA as to DONALD J. TRUMP.
(Windom, Thomas) (Entered: 11/03/2023)
11/03/
MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that
Defendant shall file any opposition to the government's 136 Motion for Leave to File
Oversized Brief by 7:00 PM on November 4, 2023. This will allow the court to rule
on the Motion in advance of the November 6, 2023 deadline for the brief in question.
Signed by Judge Tanya S. Chutkan on 11/3/2023. (zjd) (Entered: 11/03/2023)
11/03/
11/04/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 129 Motion for
Extension of Time to File Pretrial Motions Related to Discovery and Subpoenas
(Windom, Thomas) (Entered: 11/03/2023)
23
Page 52 RESPONSE by DONALD J. TRUMP re 136 MOTION for Leave to File Oversized
Brief (Lauro, John) (Entered: 11/04/2023)
11/05/
MINUTE ORDER as to DONALD J. TRUMP: The government's 136 Motion for
Leave to File Oversized Brief is hereby GRANTED. The government may submit a
combined opposition brief to Defendant's 113 Motion to Dismiss Based on
Constitutional Grounds and 114 Motion to Dismiss Based on Statutory Grounds. The
brief may not exceed 90 pages in total. The discussion of each Motion therein shall
not exceed 45 pages. Signed by Judge Tanya S. Chutkan on 11/5/2023. (zjd) (Entered:
11/05/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 113 Motion to
Dismiss Case, 114 Motion to Dismiss Case (Pearce, James) (Entered: 11/06/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 115 Motion to
Strike (Gaston, Molly) (Entered: 11/06/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 116 Motion to
Dismiss Case for Selective and Vindictive Prosecution (Windom, Thomas) (Entered:
11/06/2023)
11/06/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 128 Motion to
Stay (Gaston, Molly) (Entered: 11/06/2023)
11/06/
NOTICE OF ATTORNEY APPEARANCE John M. Pellettieri appearing for USA.
(Pellettieri, John) (Entered: 11/06/2023)
11/06/
REPLY in Support by DONALD J. TRUMP re 129 MOTION for Extension of Time
to File Motions for Rule 17(c) Subpoenas and Motions to Compel (Lauro, John)
(Entered: 11/06/2023)
11/07/
OPINION and ORDER as to DONALD J. TRUMP: granting in part and denying in
part Defendant's 129 Motion for Extension of Time to File Pretrial Motions Related to
Discovery and Subpoenas. Motions to compel due November 27, 2023; oppositions
due December 11, 2023; replies due December 18, 2023. Rule 17(c) motions due
December 13, 2023; oppositions due December 27, 2023; replies due January 3, 2024.
See Opinion and Order for details. Signed by Judge Tanya S. Chutkan on 11/7/2023.
(zjd) (Entered: 11/07/2023)
11/08/
OPINION and ORDER as to DONALD J. TRUMP: Granting in part and denying in
part the government's Motion for Formal Pretrial Notice of the Defendant's Intent to
Rely on Advice−of−Counsel Defense, ECF No. 98 . See Opinion and Order for
details. Signed by Judge Tanya S. Chutkan on 11/8/2023. (zjd) (Entered: 11/08/2023)
11/08/
ORDER as to DONALD J. TRUMP: By November 22, 2023, the government shall
submit a classified brief responding to the objection set forth in Defendant's classified
CIPA § 5 submission. See Order for details. Signed by Judge Tanya S. Chutkan on
11/8/2023. (zjd) (Entered: 11/08/2023)
11/09/
NOTICE of Filing by USA as to DONALD J. TRUMP (Windom, Thomas) (Entered:
11/09/2023)
11/09/
LEAVE TO FILE DENIED−Motion for Leave to File Amicus as to DONALD J.
TRUMP. This document is unavailable as the Court denied its filing. "Although
courts have in rare instances exercised their discretion to permit third−party
submissions in criminalcases, neither the Federal Rules of Criminal Procedure nor the
24
Page 53 Local Criminal Rules contemplate the filing ofamicus curiae briefs. At this time, the
court does not find it necessary to depart from the ordinary proceduralcourse by
permitting this filing". Signed by Judge Tanya S. Chutkan on 11/9/2023. (zhsj)
(Entered: 11/14/2023)
11/09/
LEAVE TO FILE DENIED−Notice of Appeal as to DONALD J. TRUMP This
document is unavailable as the Court denied its filing. "Even assuming a third party
could file a notice of appeal in a criminal cases which the Federal Rules of Criminal
Procedure and Local Criminal Rules do not contemplate, this filing does not comply
with Rule 3(c) of the Circuit Rules of the U.S. Court of Appeals for the District of
Columbia Circuit". Signed by Judge Tanya S. Chutkan on 11/9/2023. (zhsj) (Entered:
11/14/2023)
11/09/
LEAVE TO FILE DENIED−Proof of Service/Notice of Filing as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "Even if
construed as a motion for leave to file an amicus curiae brief, the court is
notpersuaded that filing this submission is warranted. Although courts have in
rareinstances exercised their discretion to permit third−party submissions in
criminalcases, neither the Federal Rules of Criminal Procedure nor the Local Criminal
Rulescontemplate the filing of amicus curiae briefs. At this time, the court does not
find itnecessary to depart from the ordinary procedural course by permitting this
filing". Signed by Judge Tanya S. Chutkan on 9/11/2023. (zhsj) (Entered: 11/14/2023)
11/12/
MOTION for Extension of Time to File Response/Reply as to 116 MOTION to
Dismiss Case for Selective and Vindictive Prosecution, 128 MOTION to Stay Case
Pending Immunity Determination, 115 MOTION to Strike Inflammatory Allegations
From the Indictment, 113 MOTION to Dismiss Case Based on Constitutional
Grounds, 114 MOTION to Dismiss Case Based on Statutory Grounds by DONALD
J. TRUMP. (Lauro, John) (Entered: 11/12/2023)
11/13/
Memorandum in Opposition by USA as to DONALD J. TRUMP re 150 Motion for
Extension of Time to File Response/Reply, (Gaston, Molly) (Entered: 11/13/2023)
11/13/
ORDER as to DONALD J. TRUMP: Granting in part and denying in part Defendant's
150 Motion for Extension of Time to File Reply Briefs. Defendant may file any Reply
in support of his motions to dismiss based on 113 constitutional, 114 statutory, and
116 selective prosecution grounds by November 22, 2023; and Defendant may file
any Reply in support of his pending 115 Motion to Strike and 128 Motion to Stay by
November 15, 2023. Signed by Judge Tanya S. Chutkan on 11/13/2023. (zjd)
(Entered: 11/13/2023)
11/15/
REPLY in Support by DONALD J. TRUMP re 115 MOTION to Strike Inflammatory
Allegations From the Indictment (Lauro, John) (Entered: 11/15/2023)
11/15/
REPLY in Support by DONALD J. TRUMP re 128 MOTION to Stay Case Pending
Immunity Determination (Lauro, John) (Entered: 11/15/2023)
11/17/
OPINION and ORDER as to DONALD J. TRUMP: Denying Defendant's 115 Motion
to Strike Inflammatory Allegations From the Indictment. See Opinion and Order for
details. Signed by Judge Tanya S. Chutkan on 11/17/2023. (zjd) (Entered:
11/17/2023)
11/21/
Unopposed MOTION for Extension of Time to File Response/Reply to the Special
Counsel's Classified CIPA Sec. 5 Motion to Strike by DONALD J. TRUMP.
(Blanche, Todd) (Entered: 11/21/2023)
25
Page 54 11/21/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's unopposed 159 Motion
for Extension of Time to File Opposition to the Special Counsel's Classified CIPA
Sec. 5 Motion to Strike is hereby GRANTED. Defendant may file any opposition to
the government's Motion to Strike by November 27, 2023. Signed by Judge Tanya S.
Chutkan on 11/21/2023. (zjd) (Entered: 11/21/2023)
11/22/
NOTICE of Filing by USA as to DONALD J. TRUMP (Windom, Thomas) (Entered:
11/22/2023)
11/22/
REPLY in Support by DONALD J. TRUMP re 116 MOTION to Dismiss Case for
Selective and Vindictive Prosecution (Attachments: # 1 Exhibit 1, # 2 Exhibit
2)(Blanche, Todd) (Entered: 11/22/2023)
11/22/
REPLY in Support by DONALD J. TRUMP re 113 MOTION to Dismiss Case Based
on Constitutional Grounds (Lauro, John) (Entered: 11/22/2023)
11/22/
REPLY in Support by DONALD J. TRUMP re 114 MOTION to Dismiss Case Based
on Statutory Grounds (Lauro, John) (Entered: 11/22/2023)
11/22/
LEAVE TO FILE DENIED− Motion for Leave to File Amicus as to DONALD J.
TRUMP This document is unavailable as the Court denied its filing. "Although courts
have in rare instances exercised their discretion to permit third−party submissions in
criminal cases, neither the Federal Rules of Criminal Procedure nor the Local
Criminal Rules contemplate the filing of amicus curiae briefs. At this time, the court
does not find it necessary to depart from the ordinary procedural course by permitting
this filing". Signed by Judge Tanya S. Chutkan on 11/22/2023. (zhsj) Modified on
11/27/2023 (zhsj). (Entered: 11/27/2023)
11/27/
OPINION and ORDER as to DONALD J. TRUMP: Denying Defendant's 99 Motion
for Pretrial Rule 17(c) Subpoenas. See Opinion and Order for details. Signed by Judge
Tanya S. Chutkan on 11/27/2023. (zjd) (Entered: 11/27/2023)
11/27/
MOTION for Leave to File Under Seal Unredacted Motion and Exhibits by
DONALD J. TRUMP. (Attachments: # 1 PRESIDENT DONALD J. TRUMPS
MOTION FOR AN ORDER REGARDING THE SCOPE OF THE PROSECUTION
TEAM (REDACTED), # 2 Exhibit A, # 3 Exhibit B (redacted), # 4 Exhibit C
(redacted), # 5 Exhibit D, # 6 Exhibit E (redacted), # 7 Exhibit F (redacted), # Exhibit G (redacted), # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, #
13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(Blanche, Todd)
(Entered: 11/27/2023)
11/27/
MOTION to Compel Discovery by DONALD J. TRUMP. (Attachments: # 1 Exhibit
A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Blanche, Todd) (Entered: 11/27/2023)
11/28/
MINUTE ORDER as to DONALD J. TRUMP: Defendant's 166 Motion for Leave to
File Under Seal is hereby GRANTED. The proposed filing contains Sensitive
Materials, which the court has already determined warrant sealing. See Protective
Order, ECF No. 28 . Defendant shall file under seal an unredacted copy of his Motion
for an Order Regarding the Scope of the Prosecution Team, and shall publicly file a
redacted copy of that Motion, by November 29, 2023. The court reminds Defendant
that all motions must indicate whether they are opposed. Going forward, if any party
seeks to make a filing under seal, the party shall file a sealed motion for leave to file
under seal that attaches (1) an unredacted copy of the filing to be docketed under seal,
and (2) a redacted copy of the filing that may be publicly docketed. If the court
26
Page 55 decides to grant such sealed motions for leave to file under seal, it will then direct the
Clerk of the Court to docket those attached filings under seal and publicly,
respectively. See, e.g., ECF No. 47 (Government's sealed motion for leave to file
under seal); ECF No. 55 (court order granting motion and directing Clerk to docket
filings appropriately); see also Protective Order at 4; Local R. Crim. P. 49(f)(6)(i).
Filings that do not comply with those procedures may be stricken. It is further
ORDERED that the Government shall file any opposition to Defendant's Motion for
an Order Regarding the Scope of the Prosecution Team by December 9, 2023; and
Defendant shall file any Reply in support of that Motion by December 14, 2023. In
addition, the Government shall file any Opposition to Defendant's 167 Motion to
Compel Discovery by December 11, 2023; and Defendant shall file any Reply in
support of that Motion by December 18, 2023. Signed by Judge Tanya S. Chutkan on
11/28/2023. (zjd) (Entered: 11/28/2023)
11/28/
NOTICE Pursuant to CIPA Section 5 by DONALD J. TRUMP (Blanche, Todd)
(Entered: 11/28/2023)
11/29/
REDACTED DOCUMENT by DONALD J. TRUMP of Motion for an Order
Regarding the Scope of the Prosecution Team (Attachments: # 1 Exhibit A, # Exhibit B (redacted), # 3 Exhibit C (redacted), # 4 Exhibit D, # 5 Exhibit E (redacted),
# 6 Exhibit F (redacted), # 7 Exhibit G (redacted), # 8 Exhibit H, # 9 Exhibit I, # Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # Exhibit O)(Blanche, Todd) (Entered: 11/29/2023)
12/01/
MEMORANDUM OPINION as to DONALD J. TRUMP re: Defendant's 74 Motion
to Dismiss Based on Presidential Immunity, and Defendant's 113 Motion to Dismiss
Based on Constitutional Grounds. Signed by Judge Tanya S. Chutkan on 12/1/2023.
(zjd) (Entered: 12/01/2023)
12/01/
ORDER as to DONALD J. TRUMP: Denying Defendant's 74 Motion to Dismiss
Based on Presidential Immunity, and denying Defendant's 113 Motion to Dismiss
Based on Constitutional Grounds. Signed by Judge Tanya S. Chutkan on 12/1/2023.
(zjd) (Entered: 12/01/2023)
12/01/
12/04/
MINUTE ORDER as to DONALD J. TRUMP: In light of the court's 172 Order
denying Defendant's 74 Motion to Dismiss Based on Presidential Immunity;
Defendant's 128 Motion to Stay Case Pending Immunity Determination is hereby
DENIED as moot. Signed by Judge Tanya S. Chutkan on 12/1/2023. (zjd) (Entered:
12/01/2023)
12/05/
12/05/
NOTICE of Filing by USA as to DONALD J. TRUMP (Windom, Thomas) (Entered:
12/04/2023)
MINUTE ORDER as to DONALD J. TRUMP: The Government's unopposed Sealed Motion for Leave to File Unredacted Notice Under Seal and for Entry of
Redacted Notice on Public Docket is hereby GRANTED. The proposed filing
contains Sensitive Materials, which the court has already determined warrant sealing.
See Protective Order, ECF No. 28 . The Clerk of the Court is directed to file under
seal the unredacted copy of the Government's Notice (ECF No. 174−1), and to file on
the public docket the redacted copy of the Government's Notice (ECF No. 174−2).
Signed by Judge Tanya S. Chutkan on 12/5/2023. (zjd) (Entered: 12/05/2023)

NOTICE Pursuant to Federal Rule of Evidence 404(b) by USA as to DONALD J.
TRUMP. (zhsj) (Entered: 12/05/2023)
27
Page 56 12/07/
NOTICE OF APPEAL (Interlocutory) by DONALD J. TRUMP re 172 Order on
Motion to Dismiss Case, 171 Memorandum Opinion. Filing fee $ 605, receipt number
ADCDC−10543486. Fee Status: Fee Paid. Parties have been notified. (Lauro, John)
(Entered: 12/07/2023)
12/07/
MOTION for Order Regarding Automatic Stay of Proceedings Pending Appeal re Notice of Appeal − Interlocutory by DONALD J. TRUMP. (Blanche, Todd) (Entered:
12/07/2023)
28
Page 57 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.
NOTICE OF APPEAL
Defendant President Donald J. Trump hereby provides notice that he appeals to the U.S.
Court of Appeals for the District of Columbia Circuit from the Memorandum Opinion and Order
of the District Court dated December 1, 2023, Docs. 171, 172.
Dated: December 7,
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
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-
29
Page 58 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 23-257 (TSC)
DONALD J. TRUMP,
Defendant.
ORDER
For the reasons set forth in the accompanying Memorandum Opinion, ECF No. 171,
Defendant’s Motion to Dismiss Based on Presidential Immunity, ECF No. 74, is hereby
DENIED; and Defendant’s Motion to Dismiss Based on Constitutional Grounds, ECF No. 113,
is hereby DENIED.
Date: December 1,
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 1 of 30
Page 59 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 23-257 (TSC)
DONALD J. TRUMP,
Defendant.
MEMORANDUM OPINION
The United States has charged former President Donald J. Trump with four counts of
criminal conduct that he allegedly committed during the waning days of his Presidency. See
Indictment, ECF No. 1. He has moved to dismiss the charges against him based on Presidential
immunity, ECF No. 74 (“Immunity Motion”), and on constitutional grounds, ECF No. (“Constitutional Motion”). 1 For the reasons set forth below, the court will DENY both motions.
I.
BACKGROUND
At the motion to dismiss stage, the court assumes the truth of the Indictment’s
allegations. See, e.g., United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022).
Defendant contends that the charges in the Indictment are based on his “public statements and
tweets about the federal election and certification,” “communications with the U.S. Department
of Justice about investigating elections crimes and possibly appointing a new Acting Attorney

Defendant has also moved to dismiss based on statutory grounds, ECF No. 114, and for
selective and vindictive prosecution, ECF No. 116. The court will address those motions
separately. The Supreme Court has “repeatedly . . . stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,
227 (1991) (citations omitted). The court therefore rules first on the Immunity Motion and the
Constitutional Motion—in which Defendant asserts “constitutional immunity from double
jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972).
Page 1 of 31
Page 60 General,” “communications with state officials about the federal election and the exercise of
their official duties with respect to the election,” “communications with the Vice President and
Members of Congress about the exercise of their official duties in the election-certification
proceedings,” and “organizing slates of electors as part of the attempt to convince legislators not
to certify the election against defendant.” Immunity Motion at 3–8 (formatting modified).
Those generalized descriptions fail to properly portray the conduct with which he has been
charged. Accordingly, the court will briefly review the central allegations as set forth in the
Indictment.
Defendant “was the forty-fifth President of the United States and a candidate for reelection in 2020.” Indictment ¶ 1. “Despite having lost” that election, he “was determined to
remain in power,” so “for more than two months following election day on November 3, 2020,
the Defendant spread lies that there had been outcome-determinative fraud in the election and
that he had actually won.” Id. ¶ 2. He “knew that [those claims] were false,” but “repeatedly
and widely disseminated them anyway—to make his knowingly false claims appear legitimate,
create an intense national atmosphere of mistrust and anger, and erode public faith in the
administration of the election.” Id.; see id. ¶ 12 (listing six such claims). “In fact, the Defendant
was notified repeatedly that his claims were untrue—often by the people on whom he relied for
candid advice on important matters, and who were best positioned to know the facts and he
deliberately disregarded the truth.” Id. ¶ 11. Those people included the Vice President, “senior
leaders of the Justice Department,” the Director of National Intelligence, the Department of
Homeland Security’s Cybersecurity and Infrastructure Security Agency, “Senior White House
attorneys,” “Senior staffers on the Defendant’s 2020 re-election campaign,” state legislators and
officials, and state and federal judges. Id.
Page 2 of 32
Page 61 “Defendant also pursued unlawful means of discounting legitimate votes and subverting
the election results.” Id. ¶ 4. Specifically, he “targeted a bedrock function of the United States
federal government: the nation’s process of collecting, counting, and certifying the results of the
presidential election.” Id. The Indictment describes that process:
The Constitution provided that individuals called electors select the president, and
that each state determine for itself how to appoint the electors apportioned to it.
Through state laws, each of the fifty states and the District of Columbia chose to
select their electors based on the popular vote in the state. After election day, the
[Electoral Count Act (“ECA”)] required each state to formally determine—or
‘ascertain’—the electors who would represent the state’s voters by casting electoral
votes on behalf of the candidate who had won the popular vote, and required the
executive of each state to certify to the federal government the identities of those
electors. Then, on a date set by the ECA, each state’s ascertained electors were
required to meet and collect the results of the presidential election—that is, to cast
electoral votes based on their state’s popular vote, and to send their electoral votes,
along with the state executive’s certification that they were the state’s legitimate
electors, to the United States Congress to be counted and certified in an official
proceeding. Finally, the Constitution and ECA required that on the sixth of January
following election day, the Congress meet in a Joint Session for a certification
proceeding, presided over by the Vice President as President of the Senate, to count
the electoral votes, resolve any objections, and announce the result—thus certifying
the winner of the presidential election as president-elect.
Id. ¶ 9.
Defendant, along with at least six co-conspirators, id. ¶ 8, undertook efforts “to impair,
obstruct, and defeat [that process] through dishonesty, fraud, and deceit,” id. ¶ 10. Those efforts
took five alleged forms:
First, they “used knowingly false claims of election fraud to get state legislators and
election officials to subvert the legitimate election results and change electoral votes for the
Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant.” Id. ¶ 10(a).
“That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states
to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and
Page 3 of 33
Page 62 ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the
Defendant.” Id.; see id. ¶¶ 13–52.
Second, they “organized fraudulent slates of electors in seven targeted states (Arizona,
Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic
the procedures that the legitimate electors were supposed to follow under the Constitution and
other federal and state laws.” Id. ¶ 10(b). “This included causing the fraudulent electors to meet
on the day appointed by federal law on which legitimate electors were to gather and cast their
votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they
were legitimate electors.” Id.; see id. ¶¶ 53–69. They “then caused these fraudulent electors to
transmit their false certificates to the Vice President and other government officials to be counted
at the certification proceeding on January 6,” 2021. Id. ¶ 10(b); see id. ¶¶ 53–69.
Third, they “attempted to use the power and authority of the Justice Department to
conduct sham election crime investigations and to send a letter to the targeted states that falsely
claimed that the Justice Department had identified significant concerns that may have impacted
the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the
Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to
the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’
legislatures to convene to create the opportunity to choose the fraudulent electors over the
legitimate electors.” Id. ¶ 10(c); see id. ¶¶ 70–85.
Fourth, “using knowingly false claims of election fraud,” they “attempted to convince the
Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or
send legitimate electoral votes to state legislatures for review rather than counting them.” Id.
¶ 10(d). “When that failed, on the morning of January 6,” they “repeated knowingly false claims
Page 4 of 34
Page 63 of election fraud to gathered supporters, falsely told them that the Vice President had the
authority to and might alter the election results, and directed them to the Capitol to obstruct the
certification proceeding and exert pressure on the Vice President to take the fraudulent actions he
had previously refused.” Id.; see id. ¶¶ 86–105.
Fifth, “on the afternoon of January 6,” once “a large and angry crowd—including many
individuals whom the Defendant had deceived into believing the Vice President could and might
change the election results—violently attacked the Capitol and halted the proceeding,” they
“exploited the disruption by redoubling efforts to levy false claims of election fraud and
convince members of Congress to further delay the certification based on those claims.” Id.
¶ 10(e); see id. ¶¶ 106–124.
Based on this conduct, the Indictment charges Defendant with four counts: Conspiracy to
Defraud the United States, in violation of 18 U.S.C. § 371, id. ¶ 6; Conspiracy to Obstruct an
Official Proceeding, in violation of 18 U.S.C. § 1512(k), id. ¶ 126; Obstruction of, and Attempt
to Obstruct, an Official Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), 2, id. ¶ 128; and
Conspiracy Against Rights, in violation of 18 U.S.C. § 241, id. ¶ 130.
II.
LEGAL STANDARD
A criminal defendant may move to dismiss based on a “defect in the indictment,” such as
a “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). That motion may be based—as
it is here—on constitutional challenges to the prosecution, including the assertion of immunity.
See, e.g., United States v. Stone, 394 F. Supp. 3d 1, 8 (D.D.C. 2019). “Because a court’s use of
its supervisory power to dismiss an indictment directly encroaches upon the fundamental role of
the grand jury, dismissal is granted only in unusual circumstances.” United States v. Fischer, F.4th 329, 334–35 (D.C. Cir. 2023) (formatting modified).
Page 5 of 35
Page 64 III.
EXECUTIVE IMMUNITY
Defendant contends that the Constitution grants him “absolute immunity from criminal
prosecution for actions performed within the ‘outer perimeter’ of his official responsibility”
while he served as President of the United States, so long as he was not both impeached and
convicted for those actions. Immunity Motion at 8, 11–13 (formatting modified). The
Constitution’s text, structure, and history do not support that contention. No court—or any other
branch of government—has ever accepted it. And this court will not so hold. Whatever
immunities a sitting President may enjoy, the United States has only one Chief Executive at a
time, and that position does not confer a lifelong “get-out-of-jail-free” pass. Former Presidents
enjoy no special conditions on their federal criminal liability. Defendant may be subject to
federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts
undertaken while in office.
A. Text
In interpreting the Constitution, courts ordinarily “begin with its text,” City of Boerne v.
Flores, 521 U.S. 507, 519 (1997), but there is no provision in the Constitution conferring the
immunity that Defendant claims. The Supreme Court has already noted “the absence of explicit
constitutional . . . guidance” on whether a President possesses any immunity. Nixon v.
Fitzgerald, 457 U.S. 731, 747 (1982) (“Fitzgerald”); see also United States v. Nixon, 418 U.S.
683, 705–06 n.16 (1974) (“Nixon”) (observing “the silence of the Constitution” regarding a
President’s immunity from criminal subpoenas). The Executive Branch has likewise recognized
that “the Constitution provides no explicit immunity from criminal sanctions for any civil
officer,” including the current President. A Sitting President’s Amenability to Indictment and
Criminal Prosecution, 24 U.S. Op. Off. Legal Counsel 222, 2000 WL 33711291, at *9 (2000)
(“OLC Immunity Memo”) (quoting Memorandum for the United States Concerning the Vice
Page 6 of 36
Page 65 President’s Claim of Constitutional Immunity at 4 (filed Oct. 5, 1973), In re Proceedings of the
Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the
United States (D. Md. 1973) (No. 73-965) (“1973 SG Memo”), available at 27 Hofstra L. Rev.
677, 775–97 (Appendix)) (alterations adopted). There is no “Presidential Immunity” Clause.
The lack of constitutional text is no accident; the Framers explicitly created immunity for
other officials. The Constitution’s Speech and Debate Clause provides that “Senators and
Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of their respective Houses, and in
going to and returning from the same; and for any Speech or Debate in either House, they shall
not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. And some Founding-Era
state constitutions, like those of Virginia and Delaware, unequivocally protected their Governor
from certain penal sanctions, at least until “he [was] out of office.” Saikrishna Bangalore
Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021) (quoting
Va. Const. of 1776, art. XVI); accord id. at 69–70 (quoting Del. Const. of 1776, art. XXIII). The
U.S. Constitution contains no equivalent protections for the President.
Nor is the Constitution silent on the question because its drafters and ratifiers assumed
the President would enjoy the immunity Defendant claims. To the contrary, America’s founding
generation envisioned a Chief Executive wholly different from the unaccountable, almost
omnipotent rulers of other nations at that time. In Federalist No. 69—titled “The Real Character
of the Executive”—Alexander Hamilton emphasized the “total dissimilitude between [the
President] and the king of Great Britain,” the latter being “sacred and inviolable” in that “there is
no constitutional tribunal to which he is amenable; no punishment to which he can be subjected.”
The Federalist Papers by Alexander Hamilton, James Madison and John Jay 348–49 (Garry
Page 7 of 37
Page 66 Wills ed. 1982). 2 Hamilton’s contemporary commentators universally affirmed the crucial
distinction that the President would at some point be subject to criminal process. See Prakash,
100 Tex. L. Rev. at 71–75 (collecting commentary); Response, Brian C. Kalt, Criminal Immunity
and Schrödinger’s President: A Response to Prosecuting and Punishing Our Presidents, 100 Tex.
L. Rev. Online 79, 83–85 (2021) (acknowledging Founding-Era consensus that Presidents would
lack absolute criminal immunity, but noting that most commentary was ambiguous about
whether prosecution could occur during Presidency, or only after). That widely acknowledged
contrast between the President and a king is even more compelling for a former President. The
Constitution’s silence on former Presidents’ criminal immunity thus does not reflect an
understanding that such immunity existed.
Lacking an express constitutional provision, Defendant hangs his textual argument for
immunity on the Impeachment Judgment Clause, but it cannot bear the weight he places on it.
The Clause provides:
Judgment in Cases of Impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States: but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law.
U.S. Const. art. I, § 3, cl. 7. From this language, Defendant concludes “that the President may be
charged by indictment only in cases where the President has been impeached and convicted by
trial in the Senate.” Immunity Motion at 11. But Defendant is not President, and reading the
Clause to grant absolute criminal immunity to former Presidents would contravene its plain
meaning, original understanding, and common sense.

All subsequent citations to the Federalist Papers refer to this edition, and the Papers are also
available online at https://avalon.law.yale.edu/subject_menus/fed.asp.
Page 8 of 38
Page 67 The Clause has two parts. The first limits the penalties of impeachment to removal and
disqualification from office. That limit marked a deliberate departure from the prevailing British
tradition, in which an impeachment conviction “might result in a wide array of criminal
penalties, including fines, imprisonment, and even execution.” Whether A Former President
May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House
and Acquitted by the Senate, 24 U.S. Op. Off. Legal Counsel 110, 2000 WL 33711290, at *(2000) (“OLC Double Jeopardy Memo”) (citing 2 Joseph Story, Commentaries on the
Constitution of the United States 251–2 (1833; reprint 1994) (“Story’s Commentaries”); Richard Wooddeson, A Systematical View of the Laws of England 611–14 (1792); Raoul Berger,
Impeachment: The Constitutional Problems 67 (1974)). The second part of the Clause provides,
however, that impeachment’s limits do not preclude “the Party convicted” from later criminal
prosecution in the courts—i.e., that “further punishment[] . . . would still be available but simply
not to the legislature.” Id. at *10.
Both parts of the Clause undercut Defendant’s interpretation of it. The first begins by
defining the Clause’s scope: “Judgment in Cases of Impeachment,” indicating that the Clause is
aimed primarily at identifying the permissible penalties associated with impeachment itself. The
Clause’s second part confirms that purview. Rather than stating that “the Party convicted shall
only then be liable” to criminal prosecution, the Clause states that “the Party convicted shall
nevertheless be liable.” U.S. Const. art. I, § 3, cl. 7 (emphasis added). At the Founding, as now,
“nevertheless” meant “notwithstanding that,” and “notwithstanding that” meant “[w]ithout
hindrance or obstruction from.” Neverthele’ss, Samuel Johnson, A Dictionary Of The English
Language (1978) (4th ed. 1773), available at https://perma.cc/ST8E-RCMB; id.,
Notwithsta’nding, available at https://perma.cc/A9ML-QK4Y. In the Impeachment Judgment
Page 9 of 39
Page 68 Clause, the word “nevertheless” in the second part thus signifies that the first part—constraining
impeachment’s penalties—does not bear on whether the Party would also be subject to criminal
prosecution. See OLC Immunity Memo at *2 (citing Amenability of the President, Vice
President and other Civil Officers to Federal Criminal Prosecution while in Office (1973)
(“1973 OLC Memo”), available at https://perma.cc/DM28-LHT9). As discussed at greater
length below, the Clause’s manifest purpose—and originally understood effect—was therefore
“to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a
double jeopardy argument.” Id. (citation omitted); see infra Section V.B. That is quite different
from establishing impeachment and conviction as a prerequisite to a former President’s criminal
prosecution.
The historical sources that Defendant cites do not move the needle. First, he quotes
Alexander Hamilton’s twin statements in The Federalist that the “President of the United States
would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high
crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution
and punishment in the ordinary course of law,” Federalist No. 69 at 348, and that the President
would be “at all times liable to impeachment, trial, dismission from office, incapacity to serve in
any other, and to forfeiture of life and estate by subsequent prosecution in the common course of
law,” Federalist No. 77 at 392. Immunity Motion at 12. But those statements merely echo the
Clause’s clarification that prosecution may follow impeachment; they do not say that those
events must happen in that order. Second, Defendant cites Founding Father James Wilson’s
remark during the ratification debates that the President “is amenable to [the laws] in his private
character as a citizen, and in his public character by impeachment.” J. Elliot, Debates on The
Federal Constitution 480 (2d ed. 1863). But Wilson was describing a President in office, see id.,
Page 10 of 40
Page 69 and that description is entirely consistent with a former President—having returned to life “as a
citizen”—being subject to criminal prosecution. There is no evidence that any of the
Constitution’s drafters or ratifiers intended or understood former Presidents to be criminally
immune unless they had been impeached and convicted, much less a widespread consensus that
the Impeachment Judgment Clause would have that effect.
In addition to lacking textual or historical support, Defendant’s interpretation of the
Clause collapses under the application of common sense. For one, his reasoning is based on the
logical fallacy of “denying the antecedent.” See, e.g., New LifeCare Hosps. of N.C. LLC v. Azar,
466 F. Supp. 3d 124, 136 n.7 (D.D.C. 2020). From the statement “if the animal is a cat, it can be
a pet,” it does not follow that “if the animal is not a cat, it cannot be a pet.” Yet Defendant
argues that because a President who is impeached and convicted may be subject to criminal
prosecution, “a President who is not convicted may not be subject to criminal prosecution.”
Immunity Motion at 11. Even assuming that negative implication finds some traction when
applied to sitting Presidents, see, e.g., Trump v. Vance, 140 S. Ct. 2412, 2444–45 (2020) (Alito,
J., dissenting) (discussing that implication); but see OLC Immunity Memo at *2–3 (restating the
1973 OLC Memo’s rejection of the implication); see also infra Section V.B (discussing the
implication for double jeopardy purposes), the logic certainly does not hold for former
Presidents. That is because there is another way, besides impeachment and conviction, for a
President to be removed from office and thus subjected to “the ordinary course of law,”
Federalist No. 69 at 348: As in Defendant’s case, he may be voted out. The President “shall
hold his Office during the Term of four Years.” U.S. Const. art. II, § 1, cl. 1. Without
reelection, the expiration of that term ends a Presidency as surely as impeachment and
conviction. See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit
Page 11 of 41
Page 70 Justice) (“[T]he president is elected from the mass of the people, and, on the expiration of the
time for which he is elected, returns to the mass of the people again.”). Nothing in the
Impeachment Judgment Clause prevents criminal prosecution thereafter.
Defendant’s reading of the Impeachment Judgment Clause also proves too much. If the
Clause required impeachment and conviction to precede criminal prosecution, then that
requirement would apply not only to the President, but also to the “Vice President and all civil
Officers of the United States”—who may likewise be impeached. U.S. Const. art. II, § 4. “The
constitutional practice since the Founding, however, has been to prosecute and even imprison
civil officers other than the President . . . prior to their impeachment.” OLC Immunity Memo at
*2 (citing 1973 OLC Memo at 4–7 (collecting sources)). For instance, then-Vice President
Aaron Burr was indicted without being impeached, see 1973 SG Memo at 12, and the same fate
might have befallen Vice President Spiro Agnew had he not resigned and entered a nolo
contendere plea, see United States v. Agnew, 428 F. Supp. 1293, 1293 (D. Md. 1977). Not only
would Defendant’s interpretation contradict that long-settled practice, it would also introduce
significant “complications into criminal proceedings” for all current and former federal officials,
including “threshold constitutional questions” of “whether the suspect is or was an officer of the
United States,” and “whether the offense is one for which he could be impeached.” OLC
Immunity Memo at *3 (citing 1973 OLC Memo at 7). The clash with historical practice and
difficulties in application that would flow from Defendant’s interpretation further confirm that it
cannot be the correct reading of the Clause.
Finally, Defendant’s interpretation of the Impeachment Judgment Clause would produce
implausibly perverse results. The Constitution permits impeachment and conviction for a limited
category of offenses: “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const.
Page 12 of 42
Page 71 art. II, § 4. Under Defendant’s reading, if a President commits a crime that does not fall within
that limited category, and so could not be impeached and convicted, the President could never be
prosecuted for that crime. Alternatively, if Congress does not have the opportunity to impeach
or convict a sitting President—perhaps because the crime occurred near the end of their term, or
is covered up until after the President has left office—the former President similarly could not be
prosecuted. Defendant seems to suggest that this scenario, in which the former President would
be utterly unaccountable for their crimes, is simply the price we pay for the separation of powers.
See Reply in Support of Immunity Motion, ECF No. 122, at 6 (quoting Morrison v. Olson, U.S. 654, 710 (1988) (Scalia, J., dissenting) (“While the separation of powers may prevent us
from righting every wrong, it does so in order to ensure that we do not lose liberty.”)). 3 That
cannot be the Clause’s meaning. The constitutional limits on impeachment’s penalties do not
license a President’s criminal impunity.
In sum, nothing in the Constitution’s text supplies the immunity that Defendant claims.
To be sure, “a specific textual basis has not been considered a prerequisite to the recognition of
immunity,” and so the inquiry is not confined to the express terms of our founding charter.
Fitzgerald, 457 U.S. at 750 n.31. But the lack of supporting constitutional text does mean that a
former President’s federal criminal immunity, if it exists, must arise entirely from “concerns of
public policy, especially as illuminated by our history and the structure of our government.” Id.
at 747–48. Defendant’s resort to those principles fares no better.

Even assuming that former as well as sitting Presidents may be impeached, this hypothetical
would still produce problematic results. Congress could enable a former President’s criminal
prosecution by impeaching them after they have left office. But it would raise serious
separation of powers concerns to restrain the core executive act of prosecuting a private
citizen—as a former President would then be—until Congress chose to do so. See infra
Section III.B.2.
Page 13 of 43
Page 72 B. Structure
The Supreme Court has cautioned against forms of Presidential liability that “rise to the
level of constitutionally forbidden impairment of the Executive’s ability to perform its
constitutionally mandated functions.” Clinton v. Jones, 520 U.S. 681, 702 (1997). But the
prospect of federal criminal liability for a former President does not violate that structural
principle, either by imposing unacceptable risks of vexatious litigation or by otherwise chilling
the Executive’s decision-making process. Indeed, it is likely that a President who knows that
their actions may one day be held to criminal account will be motivated to take greater care that
the laws are faithfully executed. More fundamentally, federal criminal liability is essential to the
public’s interest in our “historic commitment to the rule of law . . . nowhere more profoundly
manifest than in our view that ‘the twofold aim of criminal justice is that guilt shall not escape or
innocence suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger v. United States, 295 U.S. 78, (1935)) (formatting modified). The Presidency’s unique responsibilities do not exempt its
former occupants from that commitment.
In Fitzgerald, the Supreme Court explained the structural analysis for Presidential
immunity. In that case, civil plaintiff A. Ernest Fitzgerald claimed that President Richard Nixon
had been involved in unlawfully firing him from his government job and sought money damages
against the former President. 457 U.S. at 733–41. The five-Justice majority noted it was “settled
law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the
President of the United States.” Id. at 753–54 (citations omitted). But it instructed that “a court,
before exercising jurisdiction, must balance the constitutional weight of the interest to be served
against the dangers of intrusion on the authority and functions of the Executive Branch.” Id. at
754 (citations omitted). “When judicial action is needed to serve broad public interests—as
when the Court acts, not in derogation of the separation of powers, but to maintain their proper
Page 14 of 44
Page 73 balance, or to vindicate the public interest in an ongoing criminal prosecution—the exercise of
jurisdiction has been held warranted.” Id. (first citing Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952), then citing Nixon, 418 U.S. 731). Ultimately, the Court found that a
“merely private suit for damages based on a President’s official acts” did not serve those
interests, and held that a former President could remain immune from such suits. Id. For a
federal criminal prosecution, however, the analysis comes out the other way.
1. Burdens on the Presidency
At the outset, it bears noting that it is far less intrusive on the functions of the Executive
Branch to prosecute a former President than a sitting one. The Supreme Court has accepted at
least “the initial premise” that the President “occupies a unique office with powers and
responsibilities so vast and important that the public interest demands that he devote his
undivided time and attention to his public duties.” Clinton, 520 U.S. at 697–98. And the Office
of Legal Counsel has identified three burdens of criminal prosecution that could impede the
performance of that constitutional role:
(a) the actual imposition of a criminal sentence of incarceration, which would make
it physically impossible for the President to carry out his duties; (b) the public
stigma and opprobrium occasioned by the initiation of criminal proceedings, which
could compromise the President’s ability to fulfill his constitutionally contemplated
leadership role with respect to foreign and domestic affairs; and (c) the mental and
physical burdens of assisting in the preparation of a defense for the various stages
of the criminal proceedings, which might severely hamper the President’s
performance of his official duties.
OLC Immunity Memo at *19. But none of those burdens would result from the criminal
prosecution of a former President, who is no longer performing official duties. Accordingly, the
separation-of-powers concerns are significantly diminished in this context.
Fitzgerald nonetheless suggested that the prospect of post-Presidency civil liability might
“distract a President from his public duties, to the detriment of not only the President and his
Page 15 of 45
Page 74 office but also the Nation that the Presidency was designed to serve.” 457 U.S. at 753. The
Supreme Court highlighted two concerns: (1) the public interest in providing the President “the
maximum ability to deal fearlessly and impartially with the duties of his office,” and (2) the fact
that given the “visibility of his office and the effect of his actions on countless people, the
President would be an easily identifiable target for suits for civil damages.” Id. at 752–(quotation omitted). Defendant correspondingly focuses his arguments for immunity on (1) “the
chilling effect personal liability would have on the President’s decision-making,” and (2) the
“potential criminal prosecutions” former Presidents could face from “local, state, or subsequent
federal officials.” Immunity Motion at 9–10. He contends that “[c]ognizance of this personal
vulnerability frequently could distract a President from his public duties, to the detriment of not
only the President and his office but also the Nation that the Presidency was designed to serve.”
Id. at 10 (quoting Fitzgerald, 457 U.S. at 753).
Those concerns do not carry the same weight in the context of a former President’s
federal criminal prosecution. First, the Supreme Court has largely rejected similar claims of a
“chilling effect” from the possibility of future criminal proceedings. During the Watergate
prosecution, President Nixon argued that if recordings of his conversations were subject to
criminal subpoena, the Presidential decision-making process would be compromised because his
staff would be less candid. Nixon, 418 U.S. at 705–06. The Court disagreed, stating that it
“cannot conclude that advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such conversations will be
called for in the context of a criminal prosecution.” Id. at 712. The Court quoted Justice
Cardozo’s unanimous opinion finding that a jury’s decision-making process would not be
meaningfully chilled if jurors’ conduct were later subject to criminal prosecution:
Page 16 of 46
Page 75 A juror of integrity and reasonable firmness will not fear to speak his mind if the
confidences of debate are barred to the ears of mere impertinence of malice. He
will not expect to be shielded against the disclosure of his conduct in the event that
there is evidence reflecting upon his honor. The chance that now and then there
may be found some timid soul who will take counsel of his fears and give way to
their repressive power is too remote and shadowy to shape the course of justice.
Id. n.20 (quoting Clark v. United States, 289 U.S. 1, 16 (1933)).
The same reasoning applies here. There is no doubt that “a President must concern
himself with matters likely to arouse the most intense feelings.” Fitzgerald, 457 U.S. at (internal quotation marks omitted). But “[c]riminal conduct is not part of the necessary functions
performed by public officials.” United States v. Isaacs, 493 F.2d 1124, 1144 (7th Cir. 1974). By
definition, the President’s duty to “take Care that the Laws be faithfully executed” does not grant
special latitude to violate them. U.S. Const., art. II, § 3. That is especially true when the
violations require criminal intent, as is the case here, see Opp’n to Immunity Motion, ECF No.
109, at 31–32 (reviewing mens rea requirements for the Indictment’s four counts); cf. Imbler v.
Pachtman, 424 U.S. 409, 429 (1976) (noting that even public officials “cloaked with absolute
civil immunity . . . could be punished criminally” for their “willful acts”). Like his fellow
citizens serving on juries, then, a President “of integrity and reasonable firmness” will not fear to
carry out his lawful decision-making duties—even on hot-button political issues—and “will not
expect to be shielded against the disclosure of his conduct in the event that there is evidence
reflecting upon his honor.” Clark, 289 U.S. at 16. The rationale for immunizing a President’s
controversial decisions from civil liability does not extend to sheltering his criminality.
Indeed, the possibility of future criminal liability might encourage the kind of sober
reflection that would reinforce rather than defeat important constitutional values. If the specter
of subsequent prosecution encourages a sitting President to reconsider before deciding to act
with criminal intent, that is a benefit, not a defect. “Where an official could be expected to know
Page 17 of 47
Page 76 that certain conduct would violate statutory or constitutional rights, he should be made to
hesitate.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Consequently, to the extent that
there are any cognizable “chilling effects” on Presidential decision-making from the prospect of
criminal liability, they raise far lesser concerns than those discussed in the civil context of
Fitzgerald. Every President will face difficult decisions; whether to intentionally commit a
federal crime should not be one of them.
Second, the possibility of vexatious post-Presidency litigation is much reduced in the
criminal context. Defendant protests that denying him immunity would subject future Presidents
to “prosecution in countless federal, state, and local jurisdictions across the country,” Immunity
Motion at 10, but that is incorrect. To begin, Defendant is only charged with federal crimes in
this case, so any ruling here will be limited to that context and would not extend to state or local
prosecutions—which in any event might run afoul of the Supremacy Clause, see Vance, S. Ct. at 2428 (“The Supremacy Clause prohibits state judges and prosecutors from interfering
with a President’s official duties. . . . Any effort to manipulate a President's policy decisions or to
‘retaliat[e]’ against a President for official acts . . . would thus be an unconstitutional attempt to
‘influence’ a superior sovereign ‘exempt’ from such obstacles.” (citations omitted)). And as
Defendant well knows, see infra Section V.A, a person cannot “be subject for the same offence
to be twice put in jeopardy of life or limb,” U.S. Const., amend. V. Consequently, denying
Defendant immunity here means only that a former President may face one federal prosecution,
in one jurisdiction, for each criminal offense allegedly committed while in office. That
consequence stands in contrast to the civil context, where “the effect of [the President’s] actions
on countless people” could result in untold numbers of private plaintiffs suing for damages based
on any number of Presidential acts. Fitzgerald, 457 U.S. at 753.
Page 18 of 48
Page 77 Defendant also warns that if he is not given immunity here, criminal prosecutions will
“bedevil[] every future Presidential administration and usher[] in a new era of political
recrimination and division.” Immunity Motion at 11. But, as the Supreme Court noted when
faced with a similar argument in Clinton, that “predictive judgment finds little support in either
history or the relatively narrow compass of the issues raised in this particular case.” 520 U.S. at
702. As Defendant acknowledges, he is the only former President in United States history to
face criminal charges for acts committed while in office. See Immunity Motion at 15. “If the
past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the
Presidency.” Clinton, 520 U.S. at 702. Despite Defendant’s doomsaying, he points to no
evidence that his criminal liability in this case will open the gates to a waiting flood of future
federal prosecutions.
The robust procedural safeguards attendant to federal criminal prosecutions further
reduce the likelihood that former Presidents will be unjustly harassed. Prosecutors themselves
are constitutionally bound to not abuse their office, which is why “courts presume that they have
properly discharged their official duties.” United States v. Armstrong, 517 U.S. 456, 464 (1996)
(quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)). And a federal
indictment is issued by a grand jury, which is similarly “prohibited from engaging in ‘arbitrary
fishing expeditions’ and initiating investigations ‘out of malice or an intent to harass.’” Vance,
140 S. Ct. at 2428 (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)). Even
after indictment, “in the event of such harassment, a [former] President would be entitled to the
protection of federal courts,” which “have the tools to deter and, where necessary, dismiss”
vexatious prosecutions. Id. For instance, if a prosecution is politically motivated, as Defendant
has argued in this case, that alone may warrant dismissal. See Motion to Dismiss Case for
Page 19 of 49
Page 78 Selective and Vindictive Prosecution, ECF No. 116. And if a meritless prosecution somehow
reached trial, a former President would still have the opportunity to put the government’s proof
to the test. See U.S. Const., art. III, § 2, cl. 3.
In short, the concerns discussed in the civil context of Fitzgerald find no meaningful
purchase here. A former President accused of committing a crime while in office will be subject
to only one federal prosecution for that offense, which in turn will only result in conviction if the
grand jury finds probable cause and the prosecutor, judge, and all twelve petit jurors agree that
the charges are legitimate and have been proven beyond a reasonable doubt. Throughout that
process, a former President “may avail himself of the same protections available to every other
citizen.” Vance, 140 S. Ct. at 2430. In the rare case when a former President must do so, the
Constitution does not proffer the sledgehammer of absolute immunity where the scalpel of
procedural protections will suffice. See Burr, 25 F. Cas. at 34 (“The guard, furnished to this high
officer [the President], to protect him from being harassed by vexatious and unnecessary
subpoenas, is to be looked for in the conduct of a court after those subpoenas have issued; not in
any circumstance which is to [] precede their being issued.”). The possibility of future harassing
federal criminal prosecution will not cast so “serious” a shadow on the Presidency that its current
occupant cannot fulfill its duties. Clinton, 520 U.S. at 708.
2. Public interest
On the other of side of the scale, the public interest in the prosecution of this case carries
grave weight. The Supreme Court has repeatedly underscored its judgment that “the public
interest in fair and accurate judicial proceedings is at its height in the criminal setting.” Vance,
140 S. Ct. at 2424. It has correspondingly refused to permit other concerns, including those
asserted by Presidents, to “prevail over the fundamental demands of due process of law in the
fair administration of criminal justice.” Nixon, 418 U.S. at 713; see United States v. Gillock, Page 20 of 50
Page 79 U.S. 360, 373 (1980) (concluding that “principles of comity” must yield “where important
federal interests are at stake, as in the enforcement of federal criminal statutes”). Despite their
other vehement disagreements in Fitzgerald, all nine Justices unanimously endorsed that
judgment with respect to former Presidents. Justice Powell’s majority opinion specifically
contrasted the “lesser public interest in actions for civil damages than . . . in criminal
prosecutions.” 457 at 754 n.37. Chief Justice Burger’s concurrence made the same distinction.
Id. at 759–60 (distinguishing immunity “limited to civil damages claims” from “a criminal
prosecution,” as in Burr or Nixon (emphasis in original)). And Justice White’s four-member
dissent stressed that no party had argued “that the President is immune from criminal prosecution
in the courts[,] . . . [n]or would such a claim be credible.” Id. at 780. Fitzgerald was thus
undivided in contemplating that the public interest could require a former President’s criminal
liability.
Defendant resists that consensus in Fitzgerald by pointing to a single passage in the
majority opinion where, in listing the “formal and informal checks” that could replace civil
liability as a deterrent for Presidential misconduct, the Court did not specifically list criminal
liability. Id. at 757. From that omission, Defendant infers that the Court intended to suggest that
criminal liability would not be available either. Immunity Motion at 13. But the Court’s
unanimous emphasis that it was not immunizing former Presidents from federal criminal liability
squarely refutes that inference. If anything, the omission underscores that civil and criminal
liability are so fundamentally distinct that they cannot be understood as substitutes for one
another. Accordingly, in the parallel context of cases “which have recognized an immunity from
civil suit for state officials,” the Supreme Court has explicitly “presumed the existence of federal
Page 21 of 51
Page 80 criminal liability as a restraining factor on the conduct of state officials.” Gillock, 445 U.S.
at 372.
It is no surprise that the Supreme Court has long recognized the special public interest in
criminal law because of its distinctly communal character; that character is reflected in both the
Constitution itself and the legal tradition from which it arose. Unlike defendants in a civil
matter, for example, federal criminal defendants are constitutionally guaranteed “a speedy and
public trial” before a jury drawn from their community. U.S. Const., amend VI; id., art. III, § 2,
cl. 3. And the preeminent 18th-century legal commentator William Blackstone explained the
reason for the community’s special involvement in criminal cases: Whereas civil injuries “are an
infringement or privation of the civil rights which belong to individuals, considered merely as
individuals,” crimes “are a breach and violation of the public rights and duties due to the whole
community, considered as a community.” 4 William Blackstone, Commentaries *5. The
fundamentally public interest in a criminal prosecution explains why it “may proceed without the
consent of the victim and why it is brought in the name of the sovereign rather than the person
immediately injured by the wrong.” OLC Immunity Memo at *22. Put differently, the very
name of this case confirms the public’s particular stake in its adjudication: it is the United States
of America v. Donald J. Trump.
Congress has also affirmed the special public interests in enforcing the criminal law. In
the Sentencing Reform Act of 1984, it required every federal court to consider certain factors in
imposing sentence, and declared “the need for the sentence imposed”:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
Page 22 of 52
Page 81 (D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2); see Pub. L. 98-473, title II, § 212(a)(2) (1984). The public has an
undisputed interest in promoting respect for the law, deterring crime, protecting itself, and
rehabilitating offenders. All of those interests would be thwarted by granting former Presidents
absolute criminal immunity.
The fact that Congress has spoken by criminalizing the conduct with which Defendant is
charged also highlights the separation of powers principles that counsel in favor of the court
retaining jurisdiction over this case. “When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown, 343 U.S. at
637 (Jackson, J., concurring). Congress could have penalized the conduct alleged in this case—
if it chose to penalize it at all—with mere civil liability, perhaps allowing for monetary damages
should a private plaintiff choose to bring suit. Instead, it expressed a far stronger condemnation
by subjecting that conduct to the severe consequences of the criminal law. “Whatever may be
the case with respect to civil liability” for former Presidents, then, “the judicially fashioned
doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed
by an Act of Congress.’” O’Shea v. Littleton, 414 U.S. 488, 503 (1974) (quoting Gravel v.
United States, 408 U.S. 606, 627 (1972)). Indeed, stretching the doctrine so far would also
“imped[e] . . . the primary constitutional duty of the Judicial Branch to do justice in criminal
prosecutions,” Nixon, 418 U.S. at 707, not to mention the current President’s duty to enforce the
criminal law, see U.S. Const., art. II, § 3. Holding a former President absolutely immune would
thus impinge on the functions of all three branches with respect to the criminal law: Congress’s
province to make it, the Executive’s prerogative to enforce it, and the Judiciary’s charge to
apply it.
Page 23 of 53
Page 82 Most importantly, a former President’s exposure to federal criminal liability is essential
to fulfilling our constitutional promise of equal justice under the law. “The government of the
United States has been emphatically termed a government of laws, and not of men.” Marbury v.
Madison, 5 U.S. 137, 163 (1803). As the Supreme Court has stated, that principle must govern
citizens and officials alike:
No officer of the law may set that law at defiance with impunity. All the officers
of the government, from the highest to the lowest, are creatures of the law, and are
bound to obey it. It is the only supreme power in our system of government, and
every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it
imposes upon the exercise of the authority which it gives.
United States v. Lee, 106 U.S. 196, 220 (1882).
Perhaps no one understood the compelling public interest in the rule of law better than
our first former President, George Washington. His decision to voluntarily leave office after two
terms marked an extraordinary divergence from nearly every world leader who had preceded
him, ushering in the sacred American tradition of peacefully transitioning Presidential power—a
tradition that stood unbroken until January 6, 2021. In announcing that decision, however,
Washington counseled that the newfound American independence carried with it a responsibility.
“The very idea of the power and the right of the people to establish government presupposes the
duty of every individual to obey the established government.” Washington’s Farewell Address,
S. Doc. No. 106-21, at 13 (2d Sess. 2000), available at https://perma.cc/E5CZ-7NNP. He issued
a sober warning: “All obstructions to the execution of the laws,” including group arrangements
to “counteract” the “regular deliberation and action of the constituted authorities, are destructive
of this fundamental principle.” Id. at 14. In Washington’s view, such obstructions would prove
“fatal” to the Republic, as “cunning, ambitious, and unprincipled men will be enabled to subvert
Page 24 of 54
Page 83 the power of the people and to usurp for themselves the reins of government, destroying
afterwards the very engines which have lifted them to unjust dominion.” Id.
In this case, Defendant is charged with attempting to usurp the reins of government as
Washington forewarned: The Government alleges that, with the help of political associates, he
“spread lies that there had been outcome-determinative fraud in the election and that he had
actually won,” and “pursued unlawful means of discounting legitimate votes and subverting the
election results,” all because he “was determined to remain in power.” Indictment ¶¶ 2, 4. In
asserting absolute executive immunity, Defendant asks not for an opportunity to disprove those
allegations, but for a categorical exemption from criminal liability because, in his view, “the
indictment is based solely on President Trump’s official acts.” Immunity Motion at 27–28. That
obstruction to the execution of the laws would betray the public interest. “If one man can be
allowed to determine for himself what is law, every man can. That means first chaos, then
tyranny.” United States v. United Mine Workers of Am., 330 U.S. 258, 312 (1947) (Frankfurter,
J., concurring in the judgment).
For all these reasons, the constitutional consequences of federal criminal liability differ
sharply from those of the civil liability at issue in Fitzgerald. Federal criminal liability will not
impermissibly chill the decision-making of a dutiful Chief Executive or subject them to endless
post-Presidency litigation. It will, however, uphold the vital constitutional values that Fitzgerald
identified as warranting the exercise of jurisdiction: maintaining the separation of powers and
vindicating “the public interest in an ongoing criminal prosecution.” 457 U.S. at 753–54.
Exempting former Presidents from the ordinary operation of the criminal justice system, on the
other hand, would undermine the foundation of the rule of law that our first former President
described: “Respect for its authority, compliance with its laws, [and] acquiescence in its
Page 25 of 55
Page 84 measures”—“duties enjoined by the fundamental maxims of true liberty.” Washington’s
Farewell Address at 13. Consequently, the constitutional structure of our government does not
require absolute federal criminal immunity for former Presidents.
C. History
Nothing in American history justifies the absolute immunity Defendant seeks. As
discussed above, supra Section III.A, there is no evidence that the Founders understood the
Constitution to grant it, and since that time the Supreme Court “has never suggested that the
policy considerations which compel civil immunity for certain governmental officials also place
them beyond the reach of the criminal law.” Imbler, 424 U.S. at 429. Moreover, the notion that
former Presidents cannot face federal criminal charges for acts they took in office is refuted by
the “presuppositions of our political history.” Fitzgerald, 457 U.S. at 745 (quoting Tenney v.
Brandhove, 341 U.S. 367, 376 (1951)).
Start with the Executive Branch itself. “In the performance of assigned constitutional
duties each branch of the Government must initially interpret the Constitution, and the
interpretation of its powers by any branch is due great respect from the others.” Nixon, 418 U.S.
at 703. The Executive’s legal representatives—the Solicitor General and Office of Legal
Counsel—have expressly and repeatedly concluded that a former President may “be subject to
criminal process . . . after he leaves office or is removed therefrom through the impeachment
process.” OLC Immunity Memo at *12 (citing 1973 OLC Memo and 1973 SG Memo).
Naturally, the Special Counsel’s decision to bring this case also reflects that judgment,
distinguishing the Department of Justice’s position that former Presidents retain civil immunity.
See Brief for the United States as Amicus Curiae at 3 n.1 (filed Mar. 2, 2023), Blassingame v.
Trump, Nos. 22-5069, 22-7030, 22-7031 (D.C. Cir.). Even on its own, the Executive’s
Page 26 of 56
Page 85 longstanding and unwavering position on this issue weighs against this court unilaterally
blocking a considered prosecution by conferring absolute immunity. Historical practice also indicates that a President’s actions may later be criminally
prosecuted. In the aftermath of Watergate, for example, President Ford granted former President
Nixon “full, free, and absolute pardon . . . for all offenses against the United States which he,
Richard Nixon, has committed or may have committed or taken part in during” while in office.
Gerald Ford, Presidential Statement at 7–8 (Sept. 8, 1974), available at https://perma.cc/2GNZQQ3D. In so doing, President Ford specifically noted the “serious allegations” that, without a
pardon, would “hang like a sword over our former President’s head” until he could “obtain a fair
trial by jury.” Id. at 3; see id. at 4–5 (expressing concern about Nixon’s rights to a presumption
of innocence and a speedy trial). And former President Nixon formally accepted that “full and
absolute pardon for any charges which might be brought against me for actions taken during the
time I was President of the United States,” calling the pardon a “compassionate act.” Richard
Nixon, Statement by Former President Richard Nixon at 1 (Sept. 8, 1974), available at
https://perma.cc/WV43-6E69. Both Ford’s pardon and Nixon’s acceptance arose from the desire
to prevent the former President’s potential criminal prosecution, and both specifically refer to
that possibility—without which the pardon would have been largely unnecessary. Defendant’s
view of his own immunity thus stands at odds with that of his predecessors in the Oval Office.

Congress, the other political branch, has not spoken directly to this issue. But it has not
exempted actions taken during the Presidency from the criminal law, and “[u]nder the authority
of Art. II, § 2,” it “has vested in the Attorney General the power to conduct the criminal
litigation of the United States Government” and “to appoint subordinate officers to assist him,”
which he has done “in th[is] particular matter[]” by appointing “a Special Prosecutor.” Nixon,
418 U.S. at 694. The Government also notes the statements of individual members of
Congress—including some who voted to acquit Defendant during his impeachment trial—
anticipating that Defendant could later be criminally prosecuted for the conduct at issue. See
Opp’n to Immunity Motion at 14–15.
Page 27 of 57
Page 86 Granting the immunity Defendant seeks would also break with longstanding legal
precedent that all government officials—even those immune from civil claims—may be held to
criminal account. In Fitzgerald, for instance, the Supreme Court analogized former President
Nixon’s civil immunity to the similar protections provided to judges and prosecutors. 457 U.S.
at 745–48. Unlike most government officials, who only receive “qualified” civil immunity,
prosecutors and judges have absolute civil immunity due to “the especially sensitive duties” of
their office and the public interest in their “liberty to exercise their functions with independence
and without fear of consequences.” Id. at 745–46 (quotation omitted); see, e.g., Imbler, 424 U.S.
at 431 (state prosecutors possess absolute civil immunity for prosecutions); Stump v. Sparkman,
435 U.S. 349, 359–60 (1978) (state judges possess absolute civil immunity for judicial acts). But
notwithstanding their absolute civil immunity, prosecutors and judges are “subject to criminal
prosecutions as are other citizens.” Dennis v. Sparks, 449 U.S. 24, 31 (1980); see Imbler, U.S. at 429. Thus, while in Fitzgerald the “careful analogy to the common law absolute
immunity of judges and prosecutors” demonstrated history’s support for the former President’s
civil immunity, Vance, 140 S. Ct. at 2426, here that same history compels the denial of a former
President’s criminal immunity.
Against the weight of that history, Defendant argues in essence that because no other
former Presidents have been criminally prosecuted, it would be unconstitutional to start now.
Immunity Motion at 15–16. But while a former President’s prosecution is unprecedented, so too
are the allegations that a President committed the crimes with which Defendant is charged. See
infra Section VI.B. The Supreme Court has never immunized Presidents—much less former
Presidents—from judicial process merely because it was the first time that process had been
Page 28 of 58
Page 87 necessary. See, e.g., Vance, 140 S. Ct. at 2424–25; Clinton, 520 U.S. at 692; Nixon, 418 U.S. at
703; Burr, 25 F. Cas. at 32. The court will not do so here.
In any event, Defendant’s reasoning turns the relevant historical analysis on its head. In
Clinton, the President likewise argued that the relative dearth of cases in which “sitting
Presidents ha[d] been defendants in civil litigation involving their actions prior to taking office”
meant that the Constitution afforded him temporary immunity for such claims. 520 U.S. at 692;
see Brief for the Petitioner, 1996 WL 448096, at *17–18, Clinton v. Jones, No. 95-1853 (U.S.).
The Court found instead that the dearth of similar cases meant that there was no “basis of
precedent” for the immunity that President Clinton sought—and in fact showed that there was
little risk of such litigation impeding the Presidency going forward. Clinton, 520 U.S. at 692,
702. In other words, a defendant cannot claim that history supports their immunity by pointing
to the fact that their immunity has never been asserted. Here, as in Clinton, that absence of
precedent negates rather than validates Defendant’s argument that history establishes his
immunity from criminal prosecution.
*
*
*
For these reasons, the court cannot conclude that our Constitution cloaks former
Presidents with absolute immunity for any federal crimes they committed while in office. Our
nation’s “historic commitment to the rule of law” is “nowhere more profoundly manifest than in
our view that ‘the twofold aim of criminal justice is that guilt shall not escape or innocence
suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger, 295 U.S. at 88) (formatting modified).
Nothing in the Constitution’s text or allocation of government powers requires exempting former
Presidents from that solemn process. And neither the People who adopted the Constitution nor
those who have safeguarded it across generations have ever understood it to do so. Defendant’s
Page 29 of 59
Page 88 four-year service as Commander in Chief did not bestow on him the divine right of kings to
evade the criminal accountability that governs his fellow citizens. “No man in this country,” not
even the former President, “is so high that he is above the law.” Lee, 106 U.S. at 220.
Consistent with its duty to not “decide questions of a constitutional nature unless
absolutely necessary to a decision,” Clinton, 520 U.S. at 690 & n.11 (quoting Burton v. United
States, 196 U.S. 283, 295 (1905)), the court emphasizes the limits of its holding here. It does not
decide whether former Presidents retain absolute criminal immunity from non-federal
prosecutions, or whether sitting Presidents are entitled to greater immunity than former ones.
Similarly, the court expresses no opinion on the additional constitutional questions attendant to
Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within
the outer perimeter of the President’s official” responsibility. Immunity Motion at (formatting modified). Even if the court were to accept that assertion, it could not grant
Defendant immunity here without resolving several separate and disputed constitutional
questions of first impression, including: whether the President’s duty to “take Care that the Laws
be faithfully executed” includes within its “outer perimeter” at least five different forms of
indicted conduct; 5 whether inquiring into the President’s purpose for undertaking each form of
that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and
whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions

As another court in this district observed in a decision regarding Defendant’s civil immunity,
“[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers
and calls on the court to assess the limits of a President’s functions. And, historical examples
to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022);
see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed
that district court’s decision with an extensive analysis of just one form of conduct—“speech
on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip
op. at 23–42 (D.C. Cir. Dec. 1, 2023).
Page 30 of 60
Page 89 also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents
do not possess absolute federal criminal immunity for any acts committed while in office,
however, the court need not reach those additional constitutional issues, and it expresses no
opinion on them.
IV.
FIRST AMENDMENT
In his Constitutional Motion, Defendant first argues that the Indictment should be
dismissed because it criminalizes his speech and therefore violates the First Amendment. But it
is well established that the First Amendment does not protect speech that is used as an instrument
of a crime, and consequently the Indictment—which charges Defendant with, among other
things, making statements in furtherance of a crime—does not violate Defendant’s First
Amendment rights.
A. The First Amendment and criminal prosecutions
The First Amendment provides, in relevant part, that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. Generally, “the First Amendment
means that government has no power to restrict expression because of its message, its ideas, its
subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting
Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002)). In restricting the government’s
power to control speech, the First Amendment “embodies ‘our profound national commitment to
the free exchange of ideas.’” Ashcroft, 535 U.S. at 573 (citation omitted).
The right to freedom of speech is “not absolute,” however. Id. It is fundamental First
Amendment jurisprudence that prohibiting and punishing speech “integral to criminal conduct”
does not “raise any Constitutional problem.” Stevens, 559 U.S. at 468–69 (citation omitted);
accord Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498–502 (1949). “Many long
established” criminal laws permissibly “criminalize speech . . . that is intended to induce or
Page 31 of 61
Page 90 commence illegal activities,” United States v. Williams, 553 U.S. 285, 298 (2008), such as fraud,
bribery, perjury, extortion, threats, incitement, solicitation, and blackmail, see, e.g., Stevens, U.S. at 468–69 (fraud); Williams, 553 U.S. at 298 (incitement, solicitation); Citizens United v.
Fed. Election Comm’n, 558 U.S. 310, 356 (2010) (bribery); Rice v. Paladin Enters., Inc., F.3d 233, 244 (4th Cir. 1997) (extortion, threats, blackmail, perjury). Prosecutions for
conspiring, directing, and aiding and abetting do not run afoul of the Constitution when those
offenses are “carried out through speech.” Nat’l Org. for Women v. Operation Rescue, 37 F.3d
646, 655–56 (D.C. Cir. 1994) (directing and aiding and abetting); see Williams, 553 U.S. at (conspiring).
B. The Indictment does not violate the First Amendment
The Indictment alleges that Defendant used specific statements as instruments of the
criminal offenses with which he is charged: conspiring to fraudulently obstruct the federal
function for collecting, counting, and certifying the results of the Presidential election, in
violation of 18 U.S.C. § 371 (Count I); corruptly obstructing and conspiring to obstruct
Congress’s certification of the election results, in violation of 18 U.S.C. §§ 1512(c)(2) and (k)
(Counts II and III); and conspiring to deprive citizens of their constitutional right to have their
votes counted, in violation of 18 U.S.C § 241 (Count IV). See Indictment ¶¶ 5–130.
That Defendant’s alleged criminal conduct involved speech does not render the
Indictment unconstitutional. The Indictment notes that “Defendant had a right, like every
American, to speak publicly about the election and even to claim, falsely, that there had been
outcome-determinative fraud during the election and that he had won.” Id. ¶ 3. And it
enumerates Defendant’s specific statements only to support the allegations that Defendant joined
conspiracies and attempted to obstruct the election certification, such as the allegations that
Defendant knowingly made false claims about the election results, id. ¶¶ 11–12, and deceived
Page 32 of 62
Page 91 state officials to subvert the election results, id. ¶ 13–52. See, e.g., id. ¶¶ 12, 19, 22, 31–35, 37,
41, 46, 50, 52 (referencing Defendant’s statements). The Indictment therefore properly alleges
Defendant’s statements were made in furtherance of a criminal scheme.
Defendant argues that the Indictment violates the First Amendment for three primary
reasons: (1) the government may not prohibit Defendant’s core political speech on matters of
public concern, Constitutional Motion at 4–11; (2) “First Amendment protection . . . extends to
statements advocating the government to act,” id. at 12–14 (formatting modified); and
(3) Defendant reasonably believed that the 2020 Presidential Election was stolen, id. at 15–17.
1. Core political speech on matters of public concern
Defendant first claims that his statements disputing the outcome of the 2020 election is
“core political speech” that addresses a “matter[] of public concern.” Id. at 8–10. Even
assuming that is true, “core political speech” addressing “matters of public concern” is not
“immunized from prosecution” if it is used to further criminal activity. United States v. Rahman,
189 F.3d 88, 117 (2d Cir. 1999); see Stevens, 559 U.S. at 468–69. That is the case even though
Defendant was the President at the time. See Blassingame v. Trump, Nos. 22-5069, 22-7030, 227031, slip op. at 50 (D.C. Cir. Dec. 1, 2023) (Defendant is not entitled to immunity when he
“engages in speech” that “removes him[] from the First Amendment’s protections.”). As the
D.C. Circuit has recognized, “an immunity for all presidential speech on matters of public
concern …. is ‘unsupported by precedent.’” Id. at 27 (quoting Clinton, 520 U.S. at 695).
In support of his argument, Defendant first invokes various Justices’ opinions in United
States v. Alvarez, 567 U.S. 709 (2012). Constitutional Motion at 4–7. There was no majority
opinion in Alvarez; a majority of the Justices agreed only that the Stolen Valor Act, which
prohibits an individual from falsely representing that they have received “any decoration or
medal authorized by Congress for the Armed Forces of the United States,” violated the First
Page 33 of 63
Page 92 Amendment. 567 U.S. at 716, 729–30 (plurality opinion) (Kennedy, J., joined by Roberts. C.J.,
Ginsburg, J., and Sotomayor, J.); id. at 730 (Breyer, J. concurring in the judgment, joined by
Kagan, J.). One theme common to both the plurality and concurring opinions, however, was the
concern that the Stolen Valor Act prohibited only false statements and only because of their
falsity. See id. at 717–22 (plurality opinion); id. at 732 (Breyer, J. concurring). Indeed, each
opinion reiterated that laws “implicat[ing] fraud or speech integral to criminal conduct” are
constitutional. Id. at 721 (plurality opinion); accord id. at 734–36 (Breyer, J., concurring in the
judgment); id. at 747 (Alito, J., dissenting). Because it confirmed that speech involved in the
commission of a crime was not protected by the First Amendment, Alvarez did not undermine
settled precedent allowing the prosecution of speech in furtherance of criminal activity.
Second, Defendant contends that “attempts to prohibit or criminalize claims on political
disputes” constitute viewpoint discrimination. Constitutional Motion at 9–10. But Defendant is
not being prosecuted for his “view” on a political dispute; he is being prosecuted for acts
constituting criminal conspiracy and obstruction of the electoral process. Supra Section I. And
any political motives Defendant may have had in doing so do not insulate his conduct from
prosecution. E.g., Rahman, 189 F.3d at 116–17 (mixed motives do not insulate speech from
prosecution); see Gov.’s Omnibus Opp’n to Def.’s Motions to Dismiss the Indictment on
Statutory and Constitutional Grounds, ECF No. 139 at 33 (Opp’n to Constitutional Motion)
(collecting other Circuit cases). The Indictment does not unconstitutionally discriminate against
Defendant based on viewpoint.
Third, Defendant argues that even if a higher level of scrutiny does not apply to the
Indictment, it nonetheless is invalid “under any level of scrutiny” because it is “tailored to violate
free-speech rights.” Constitutional Motion at 11. Here, however, there is no level of scrutiny
Page 34 of 64
Page 93 that applies, because speech in furtherance of criminal conduct does not receive any First
Amendment protection. E.g., Stevens, 559 U.S. at 468–69. Moreover, Defendant cites no
support for his argument that the Indictment is “tailored to violate free-speech rights,” nor does
he explain how the Indictment is so tailored. See Constitutional Motion at 11 (emphasis added).
Finally, Defendant argues that the Indictment violates the First Amendment because “all
the charged conduct constitutes First Amendment protected speech.” Def.’s Reply in Support of
Motion to Dismiss Based on Constitutional Grounds, ECF No. 162 at 7–8 (“Constitutional
Reply”) (emphasis in original). He contends that to qualify as speech in furtherance of criminal
conduct, “the speech in question must ‘be integral to’ some criminal ‘conduct’ that is not itself a
form of First Amendment-protected speech or expression.” Id. (emphasis added). But again, the
Indictment does not need to list other kinds of criminal conduct in addition to speech to comply
with the First Amendment; the crimes Defendant is charged with violating may be carried out
through speech alone. See Nat’l Org. for Women, 37 F.3d at 656; supra Section IV.A.
2. Statements advocating government action
Defendant next claims the First Amendment protects “statements advocating the
government to act.” Constitutional Motion at 12–14 (formatting modified). He first contends
the Petition Clause of the First Amendment provides an absolute right to make statements
encouraging the government to act in a public forum, citing McDonald v. Smith, 472 U.S. (1985). Constitutional Motion at 12–13. The Petition Clause provides that “Congress shall
make no law . . . abridging . . . the right of the people . . . to petition the Government for a
redress of grievances.” U.S. Const. amend. I. The Clause protects individuals’ ability to
“‘communicate their will’ through direct petitions to the legislature and government officials.”
McDonald, 472 U.S. at 482 (quoting 1 Annals of Congress 738 (1789) (James Madison)). In
McDonald, however, the Supreme Court concluded that the Petition Clause did not immunize a
Page 35 of 65
Page 94 person from a libel suit based on letters the individual had sent to the President. Id. at 480–81;
see also Opp’n to Constitutional Motion at 34. The Court explained that the Petition Clause does
not have “special First Amendment status,” so “there is no sound basis for granting greater
constitutional protection” under the Petition Clause “than other First Amendment expressions.”
McDonald, 472 U.S. at 484–85. Defendant’s reliance on the Clause and its interpretation in
McDonald is therefore unavailing, as the Petition Clause does not prohibit prosecuting
Defendant’s speech any more than the Speech Clause does. The Petition Clause does not
insulate speech from prosecution merely because that speech also petitions the government.
Defendant also invokes McDonnell v. United States, 579 U.S. 550 (2016), to argue that
allowing this prosecution would risk criminalizing statements once thought to be false that
turned out to be true, such as statements made early in the COVID-19 pandemic that masks do
not stop the transmission of the virus. Constitutional Motion at 13–14. Not so. First,
McDonnell did not involve the First Amendment but rather the proper interpretation of “official
act” under the federal bribery statute, 18 U.S.C. § 201(b)(2). McDonell, 579 U.S. at 566; see
Opp’n to Constitutional Motion at 34 n.14. And neither the Indictment nor the federal statutes
under which Defendant is charged involve an “official act.” Second, Defendant is not being
prosecuted simply for making false statements, see supra at 33–34, but rather for knowingly
making false statements in furtherance of a criminal conspiracy and obstructing the electoral
process. Consequently, there is no danger of a slippery slope in which inadvertent false
statements alone are alleged to be the basis for criminal prosecution.
In his Reply brief, Defendant also raises overbreadth, arguing that under the
Government’s interpretation, the underlying statutes charged in the Indictment are
unconstitutional because they “criminalize a wide range of perfectly ordinary acts of public
Page 36 of 66
Page 95 speech and petitioning the government.” Constitutional Reply at 9–10. Assuming Defendant’s
overbreadth challenge was properly raised for the first time in his Reply brief, the statutes are not
overbroad under the Government’s view. As an initial matter, Defendant’s actions are not
entitled to First Amendment protection as “perfectly ordinary acts of public speech and
petitioning the government.” Supra Section IV.B.1–2; infra Section IV.B.3. Moreover,
Defendant fails to identify any protected acts or speech that the statutes might render
impermissible under the Government’s interpretation. See, e.g., United States v. Hansen, U.S. 762, 769–70 (2023) (A litigant must “demonstrate[] that the statute ‘prohibits a substantial
amount of protected speech’ relative to its ‘plainly legitimate sweep’” to succeed in overbreadth
challenge (citation omitted)).
3. Defendant’s statements on the 2020 Presidential Election
Finally, Defendant claims the First Amendment does not permit the government to
prosecute him for his reasonable belief that the 2020 Presidential Election was stolen.
Constitutional Motion at 15–17. He argues that the truth or falsity of his belief is not “easily
verifiable” and there is “abundant public evidence providing a reasonable basis” for his view. Id.
at 15–16. He contends that he is “entitled to mistrust the word of . . . establishment-based
government officials and draw [his] own inferences from the facts.” Id. at 17. At this stage,
however, the court must take the allegations in the Indictment as true, supra Section II, and the
Indictment alleges that Defendant made statements that he knew were false, e.g., Indictment
¶¶ 11–12; see also Opp’n to Constitutional Motion at 26–27. While Defendant challenges that
allegation in his Motion, and may do so at trial, his claim that his belief was reasonable does not
implicate the First Amendment. If the Government cannot prove beyond a reasonable doubt at
trial that Defendant knowingly made false statements, he will not be convicted; that would not
mean the Indictment violated the First Amendment.
Page 37 of 67
Page 96 V.
DOUBLE JEOPARDY
Defendant’s Constitutional Motion next posits that the prosecution violates double
jeopardy because Defendant was tried—and acquitted—in earlier impeachment proceedings
arising out of the same course of conduct. Constitutional Motion at 18–24. But neither
traditional double jeopardy principles nor the Impeachment Judgment Clause provide that a
prosecution following impeachment acquittal violates double jeopardy.
A. Double Jeopardy Clause
The Fifth Amendment provides that “[n]o person shall . . . be subject for the same offense
to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. To “be twice put in jeopardy
of life or limb” means to face the possibility of “multiple criminal punishments for the same
offense.” Hudson v. United States, 522 U.S. 93, 99 (citation omitted) (emphasis in original). A
purportedly civil penalty only counts in the double jeopardy context if “the statutory scheme was
so punitive in either purpose or effect . . . as to ‘transform’” it into a criminal penalty. Id.
(citation omitted).
As long as separate prosecutions charge an individual with violating different laws, the
prosecutions are considered separate “offenses” under the Double Jeopardy Clause and the
second prosecution passes constitutional muster. Denezpi v. United States, 596 U.S. 591, 597–
98 (2022). When the same “act or transaction” violates two distinct provisions of the same
statute, there are distinct offenses only if “each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). In contexts involving
different sovereigns—such as the federal government and a state government—a person may be
tried for violating laws that “have identical elements and could not be separately prosecuted if
enacted by a single sovereign.” Denezpi, 596 U.S. at 597–98.
Page 38 of 68
Page 97 The Indictment here does not violate double jeopardy principles. First, impeachment
threatens only “removal from Office, and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States,” U.S. Const. art. I, § 3, cl. 7, neither of which is a
criminal penalty. See supra at 9. Nor does Defendant argue that they are civil penalties that
should be construed as criminal penalties. See Constitutional Motion at 23–24. Second, the
impeachment proceedings charged Defendant with “Incitement of Insurrection,” which is not
charged in the Indictment. See Opp’n to Constitutional Motion at 60–62 (citing H.R. Res. 24,
117th Cong. (Jan. 11, 2021)). Although there are few decisions interpreting the analogous
federal statute that prohibits inciting “any . . . insurrection against the authority of the United
States or the laws thereof,” 18 U.S.C. § 2383, it is well-established that “incitement” typically
means “advocacy . . . directed to inciting or producing imminent lawless action” that is “likely to
incite or produce such action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). None of the
statutes under which Defendant is charged require the Government to prove incitement. See U.S.C. § 371; id. §§ 1512(c)(2), (k); id. § 241; accord Indictment ¶¶ 6, 126, 128, 130. The
impeachment proceedings and this prosecution therefore did not “twice put” Defendant “in
jeopardy of life or limb” for the “same offense.”
Defendant also contends his prosecution violates double jeopardy principles because the
distinct branches of government are part of one single sovereign. Constitutional Motion at 24.
But even assuming that is true, Defendant does not argue that impeachment carries a criminal
sanction or that the impeachment proceedings were based on the same offense as charged in the
Indictment. See id. at 23–24. Instead, he argues that different double jeopardy principles would
apply to prosecutions following impeachments, referencing only the Impeachment Judgment
Clause for support. Constitutional Reply at 18–20. But, as discussed below, the Impeachment
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Page 98 Judgment Clause provides only that prosecutions following convictions at impeachment are
constitutionally permissible; it does not create special double jeopardy principles. See U.S.
Const. art. I, § 3, cl. 7; infra Section V.B. Consequently, the Indictment does not violate the
Double Jeopardy Clause.
B. Impeachment Judgment Clause
The Impeachment Judgment Clause provides that “Judgment in Cases of Impeachment
shall not extend further than to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to
Law.” U.S. Const. art. I, § 3, cl. 7. As explained above, the first part of the Clause limits the
remedies available in impeachment, and the second part provides that even if a person is
convicted in impeachment proceedings, they may still be subject to criminal prosecution. See
supra at 8–10. As the Office of Legal Counsel noted, the “second part makes clear that the
restriction on sanctions in the first part was not a prohibition on further punishments; rather,
those punishments would still be available but simply not to the legislature.” OLC Double
Jeopardy Memo at *10.
Defendant contends the Impeachment Judgment Clause contains a negative implication:
if a person is not convicted in impeachment proceedings, they may not be prosecuted.
Constitutional Motion at 18–23; Constitutional Reply at 10–11. In statutory interpretation, the
expressio unius canon, which provides that “expressing one item of an associated group or series
excludes another left unmentioned,” does not apply unless “circumstances support a sensible
inference that the term left out must have been meant to be excluded.” NLRB v. SW General,
Inc., 580 U.S. 288, 302 (2017) (citations omitted). Because Defendant’s reading is not supported
by the structure of the Constitution, the historical context of the impeachment clauses, or prior
Page 40 of 70
Page 99 constitutional precedents, expressio unius does not apply. Accord Thompson v. Trump, F. Supp. 3d 46, 86–87 (D.D.C. 2022). The Impeachment Judgment Clause does not provide that
acquittal by the Senate during impeachment proceedings shields a President from criminal
prosecution after he leaves office.
1. Structure
Structural considerations support reading the Impeachment Judgment Clause as the plain
language suggests. First, as the Government notes, impeachment and prosecution serve distinct
goals within the separation of powers. See Opp’n to Constitutional Motion at 52–53.
Impeachment “is designed to enable Congress to protect the nation against officers who have
demonstrated that they are unfit to carry out important public responsibilities,” whereas
prosecution is designed to “penalize individuals for their criminal misdeeds.” OLC Double
Jeopardy Memo at *13. Impeachment proceedings provide far fewer procedural safeguards than
do prosecutions, see id., and accordingly, Congress may not dispense criminal penalties in
impeachment proceedings, supra Section V.A. Impeachment is not a substitute for prosecution.
Second, the Senate may acquit in impeachment proceedings even when it finds that an
official committed the acts alleged. For example, the Senate may acquit because it believes the
acts committed do not amount to “high Crimes and Misdemeanors,” U.S. Const. art. II, § 4;
because the Senate believes it lacks authority to try the official; or for partisan reasons. OLC
Double Jeopardy Memo at *14–15. Indeed, the Framers anticipated that impeachments might
spark partisan division. See The Federalist No. 65, at 330–31 (Alexander Hamilton); Letter from
Edmund Pendleton to James Madison, Oct. 8, 1787, 10 The Documentary History of the
Ratification of the Constitution 1773 (1976); 10 The Papers of James Madison 223 (Rutland et
al. ed., 1977); accord OLC Double Jeopardy Memo at *15. Acquittal on impeachment does not
establish the defendant’s innocence.
Page 41 of 71
Page 100 Defendant contends that impeachment serves to protect officials from political attacks by
their enemies, and allowing prosecution following impeachment acquittal would undermine that
protection. Constitutional Reply at 15–18. But politics are likely to play even larger a role in
impeachments than in prosecutions, given that impeachments are conducted by elected officials
politically accountable to their constituents, whereas prosecutions are conducted by appointed
officials, most of whom may not be removed without cause, see Free Enter. Fund v. Public Co.
Accounting Oversight Bd., 561 U.S. 477, 492–93 (2010) (explaining for-cause removal). And
former officials like Defendant, rather than current officials, are also less likely to be politically
attacked, because they no longer hold the power and authority of political office.
2. Historical context
Defendant claims that his interpretation of the Impeachment Judgment Clause reflects the
original public meaning of the impeachment clauses. Constitutional Motion at 20–21;
Constitutional Reply at 12–15. Considerable historical research undermines that contention. See
OLC Double Jeopardy Memo at *7–12 (“We are unaware of any evidence suggesting that the
framers and ratifiers of the Constitution chose the phrase ‘the party convicted’ with a negative
implication in mind.”); accord Thompson, 590 F. Supp. 3d at 87. Most notably, the Founders
repeatedly acknowledged that impeachment acquittals would not bar subsequent prosecutions.
For example, James Wilson, who participated in the Constitutional Convention, observed that
officials who “may not be convicted on impeachment . . . may be tried by their country.” 2 The
Documentary History of the Ratification of the Constitution 492. Edward Pendleton, who was
President of the Virginia Ratifying Convention, similarly observed that “an Acquital would not
bar,” a “resort to the Courts of Justice,” Letter from Edmund Pendleton to James Madison, Oct.
8, 1787, 10 The Documentary History of the Ratification of the Constitution 1773, a conclusion
that James Madison called “extremely well founded,” 10 The Papers of James Madison 223.
Page 42 of 72
Page 101 Justice Story too described that, following impeachment, “a second trial for the same offence
could be had, either after an acquittal, or a conviction in the court of impeachments.” 2 Story’s
Commentaries § 780.
Founding-era officials similarly acknowledged that an acquittal at impeachment
proceedings would not bar a subsequent prosecution. For example, during the first federal
impeachment trial, Representative Samuel Dana contrasted impeachment proceedings with
criminal trials, stating that impeachment had “no conne[ct]ion with punishment or crime, as,
whether a person tried under an impeachment be found guilty or acquitted, he is still liable to a
prosecution at common law.” 9 Annals of Congress 2475 (1798). None of the sources
Defendant cites refute that conclusion. See Constitutional Motion at 20–21.
3. Prior precedent
Defendant’s additional arguments invoking past constitutional precedents are similarly
unavailing. He first cites Justice Alito’s dissent in Vance. Constitutional Motion at 19–20. In
Vance, the Supreme Court held that a sitting President is not immune from state criminal
subpoenas, nor does a heightened standard apply to such requests. 140 S. Ct. at 2431. In so
holding, the majority opinion reiterated that “no citizen, not even the President, is categorically
above the common duty to produce evidence when called upon in a criminal proceeding.” Id.
Justice Alito’s dissent, moreover, noted that under the Impeachment Judgement Clause,
“criminal prosecution, like removal from the Presidency and disqualification from other offices,
is a consequence that can come about only after the Senate’s judgment, not during or prior to the
Senate trial.” Id. at 2444 (Alito, J., dissenting); see Constitutional Motion at 19. All Justice
Alito’s dissent observed is that, temporally, any prosecution must follow the judgment on
impeachment; no official shall be subject to simultaneous impeachment proceedings and
Page 43 of 73
Page 102 criminal prosecution. The dissent does not support the view that if impeachment proceedings
end in acquittal, subsequent prosecution violates double jeopardy.
Defendant also cites Fitzgerald for the proposition that the threat of impeachment alone
is the proper remedy against a President for any “official misfeasance.” Constitutional Motion
at 22. But as already explained, Fitzgerald is meaningfully distinguishable; it addressed
immunity from civil suit, and all nine Justices took care to emphasize that their reasoning did not
extend to the criminal context. See supra Section III.B.1.
In sum, neither the Double Jeopardy Clause nor the Impeachment Judgment Clause
prevent Defendant, who while President was acquitted in impeachment proceedings for
incitement, from being prosecuted after leaving office for different offenses.
VI.
DUE PROCESS
Finally, Defendant contends that the Indictment violates the Due Process Clause because
he lacked fair notice that his conduct was unlawful. Constitutional Motion at 25–31.
A. Due process principles
The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. To
comply with due process, a law must give “fair warning” of the prohibited conduct. United
States v. Lanier, 520 U.S. 259, 265 (1997) (citation omitted). A law fails to give fair warning if
the text of a statute is so unclear that it requires the Judicial and Executive Branches to “define
what conduct is sanctionable and what is not,” Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018);
see Lanier, 520 U.S. at 266 (citation omitted), or a judge construes the statute in a manner that is
“clearly at variance with the statutory language,” Bouie v. City of Columbia, 378 U.S. 347, (1964); see Rogers v. Tennessee, 532 U.S. 451, 457 (2001); see also Lanier, 520 U.S. at 266.
Page 44 of 74
Page 103 For instance, in 2015, the Supreme Court concluded that the residual clause of the Armed
Career Criminal Act violated due process because it was so vague—and difficult to administer—
that defendants lacked notice of how it would be applied in any given case. Johnson v. United
States, 576 U.S. 591, 597 (2015). The Court explained that the residual clause required judges to
imagine an “ordinary case” involving the crime with which the defendant was charged, and
compare the defendant’s actions to that “ordinary case.” Id. at 597, 599. It further emphasized
that its “repeated attempts and repeated failures to craft a principled and objective standard out of
the residual clause confirm[ed] its hopeless indeterminacy,” id. at 598, noting that the clause had
caused “numerous splits among the lower federal courts,” id. at 601 (citation omitted).
A statute does not fail to give fair warning just “because it ‘does not mean the same thing
to all people, all the time, everywhere.’” United States v. Bronstein, 849 F.3d 1101, 1107 (D.C.
Cir. 2017) (citation omitted). “Since words, by their nature, are imprecise instruments,” laws
“may have gray areas at the margins” without violating due process. United States v. Barnes,
295 F.3d 1354, 1366 (D.C. Cir. 2002). Indeed, statutes are rarely found unconstitutional because
their text fails to give fair warning. See, e.g., Bronstein, 849 F.3d at 1107 (statute upheld);
Barnes, 259 F.3d at 1366 (same); Woodhull Freedom Found. v. United States, 72 F.4th 1286,
1303–05 (D.C. Cir. 2023) (same); Kincaid v. Gov’t of D.C., 854 F.3d 721, 728–30 (D.C. Cir.
2017) (same); Agnew v. Gov’t of D.C., 920 F.3d 49, 55–61 (D.C. Cir. 2019) (same).
Applying a novel judicial construction of a statute may also fail to give fair warning if it
“unexpectedly broadens” the statute’s reach and applies that expanded reach “retroactively.”
Bouie, 378 U.S. at 353–57; see Rogers, 532 U.S. at 457; Reed v. Goertz, 143 S. Ct. 955, 960–(2023). In Bouie, for example, defendants were convicted of violating a state law prohibiting
“entry upon the lands of another . . . after notice from the other . . . prohibiting such entry” after
Page 45 of 75
Page 104 they remained on premises after being asked to leave, even though they did not re-enter the
premises. 378 U.S. at 355. The Supreme Court held that the state supreme court’s construction
of the statute failed to give the defendants fair notice because it was “clearly at variance with the
statutory language” and had “not the slightest support in prior [state] decisions.” Id. at 356.
B. The Indictment does not violate due process
Defendant had fair notice that his conduct might be unlawful. None of the criminal laws
he is accused of violating—18 U.S.C. § 371; id. § 1512(k); id. § 1512(c)(2); and id. § 241—
require the Executive or Judicial Branch to “guess” at the prohibited conduct, Lanier, 520 U.S. at
266. Nor does finding that the Indictment complies with due process require the court to create a
novel judicial construction of any statute.
Defendant notes that the “principle of fair notice has special force” in the First
Amendment Context. Constitutional Motion at 26–27. While that may be true, even “special
force” does not place Defendant’s alleged conduct “outside the plain language of the charged
statutes” as he alleges. See id. at 27. First, his argument does not contrast the allegations in the
Indictment with the plain language of the statutes, but instead attempts to recast the factual
allegations in the Indictment itself as no more than routine efforts to challenge an election. See
id. at 31 (claiming that “post-election challenges” like Defendant’s “had been performed in 1800,
1824, 1876, and 1960 . . . without any suggestion [it was] criminal”). But again, at this stage, the
court must take the allegations in the Indictment as true. Supra Section II, IV.B.3. The fact that
Defendant disputes the allegations in the Indictment do not render them unconstitutional.
Second, the meaning of statutory terms “need not be immediately obvious to an average person;
indeed, ‘even trained lawyers may find it necessary to consult legal dictionaries, treatises, and
judicial opinions before they may say with any certainty what some statutes may compel or
forbid.’” Agnew, 920 F.3d at 57 (citation omitted). And due process does not entitle Defendant
Page 46 of 76
Page 105 to advance warning that his precise conduct is unlawful, so long as the law plainly forbids it. See
Lanier, 520 U.S. at 271; cf. United States v. Int’l Mins. & Chem. Corp., 402 U.S. 558, (1971) (“ignorance of the law is no defense”).
Defendant also claims he lacked fair notice because there is a “long history” of
government officials “publicly claiming that election results were tainted by fraud” or
questioning election results, yet he is “the first person to face criminal charges for such core
political behavior.” Constitutional Motion at 25; see id. at 27–30. But there is also a long
history of prosecutions for interfering with the outcome of elections; that history provided
Defendant with notice that his conduct could be prosecuted. See Opp’n to Constitutional Motion
at 39–40 (citing six examples of 18 U.S.C. § 241 prosecutions). Indeed, the Supreme Court has
addressed more than one case in which officials were prosecuted for interfering with or
discarding election ballots. United States v. Mosley, 238 U.S. 383, 385 (1915); United States v.
Saylor, 322 U.S. 385, 386 (1944).
In addition, none of the contested elections Defendant invokes is analogous to this case.
See Opp’n to Constitutional Motion at 40–47 (detailing the history of each election). As noted
above, Defendant is not being prosecuted for publicly contesting the results of the election; he is
being prosecuted for knowingly making false statements in furtherance of a criminal conspiracy
and for obstruction of election certification proceedings. And in none of these earlier
circumstances was there any allegation that any official engaged in criminal conduct to obstruct
the electoral process. For instance, following the 2004 Presidential election, Representative
Stephanie Tubbs Jones raised an objection to Ohio’s electoral votes at the joint session; Senator
Boxer signed the objection. 151 Cong. Rec. 199 (Jan. 6, 2005). As Representative Jones
explained in a separate session, that objection was to allow “a necessary, timely, and appropriate
Page 47 of 77
Page 106 opportunity to review and remedy . . . the right to vote.” Id. Ohio’s electoral votes were then
counted for President Bush. Defendant points to no allegation that Representative Jones’
objection was in furtherance of a criminal conspiracy or designed to obstruct the electoral
process.
Moreover, even if there were an analogous circumstance in which an official had escaped
prosecution, the mere absence of prior prosecution in a similar circumstance would not
necessarily mean that Defendant’s conduct was lawful or that his prosecution lacks due process.
The “exclusive authority and absolute discretion to decide whether to prosecute a case”—within
bounds, supra at 19–20—is a cornerstone of the Executive Branch. Nixon, 418 U.S. at (citation omitted).
Finally, Defendant argues that, for the Indictment to comply with due process, the
prosecution bears the burden to “provide examples where similar conduct was found criminal.”
Constitutional Reply at 21. Under that theory, novel criminal acts would never be prosecuted.
The Constitution does not so constrain the Executive Branch.
VII.
CONCLUSION
For the foregoing reasons, the court will DENY Defendant’s Motion to Dismiss
Indictment Based on Presidential Immunity, ECF No. 74, and Motion to Dismiss the Indictment
Based on Constitutional Grounds, ECF No. 113. A corresponding Order will accompany this
Memorandum Opinion.
Date: December 1,
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 48 of 78
Page 107 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 23-257 (TSC)
DONALD J. TRUMP,
Defendant.
ORDER
For the reasons set forth in the accompanying Memorandum Opinion, ECF No. 171,
Defendant’s Motion to Dismiss Based on Presidential Immunity, ECF No. 74, is hereby
DENIED; and Defendant’s Motion to Dismiss Based on Constitutional Grounds, ECF No. 113,
is hereby DENIED.
Date: December 1,
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 1 of
Page 108 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 23-257 (TSC)
DONALD J. TRUMP,
Defendant.
MEMORANDUM OPINION
The United States has charged former President Donald J. Trump with four counts of
criminal conduct that he allegedly committed during the waning days of his Presidency. See
Indictment, ECF No. 1. He has moved to dismiss the charges against him based on Presidential
immunity, ECF No. 74 (“Immunity Motion”), and on constitutional grounds, ECF No. (“Constitutional Motion”). 1 For the reasons set forth below, the court will DENY both motions.
I.
BACKGROUND
At the motion to dismiss stage, the court assumes the truth of the Indictment’s
allegations. See, e.g., United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022).
Defendant contends that the charges in the Indictment are based on his “public statements and
tweets about the federal election and certification,” “communications with the U.S. Department
of Justice about investigating elections crimes and possibly appointing a new Acting Attorney

Defendant has also moved to dismiss based on statutory grounds, ECF No. 114, and for
selective and vindictive prosecution, ECF No. 116. The court will address those motions
separately. The Supreme Court has “repeatedly . . . stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,
227 (1991) (citations omitted). The court therefore rules first on the Immunity Motion and the
Constitutional Motion—in which Defendant asserts “constitutional immunity from double
jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972).
Page 1 of
Page 109 General,” “communications with state officials about the federal election and the exercise of
their official duties with respect to the election,” “communications with the Vice President and
Members of Congress about the exercise of their official duties in the election-certification
proceedings,” and “organizing slates of electors as part of the attempt to convince legislators not
to certify the election against defendant.” Immunity Motion at 3–8 (formatting modified).
Those generalized descriptions fail to properly portray the conduct with which he has been
charged. Accordingly, the court will briefly review the central allegations as set forth in the
Indictment.
Defendant “was the forty-fifth President of the United States and a candidate for reelection in 2020.” Indictment ¶ 1. “Despite having lost” that election, he “was determined to
remain in power,” so “for more than two months following election day on November 3, 2020,
the Defendant spread lies that there had been outcome-determinative fraud in the election and
that he had actually won.” Id. ¶ 2. He “knew that [those claims] were false,” but “repeatedly
and widely disseminated them anyway—to make his knowingly false claims appear legitimate,
create an intense national atmosphere of mistrust and anger, and erode public faith in the
administration of the election.” Id.; see id. ¶ 12 (listing six such claims). “In fact, the Defendant
was notified repeatedly that his claims were untrue—often by the people on whom he relied for
candid advice on important matters, and who were best positioned to know the facts and he
deliberately disregarded the truth.” Id. ¶ 11. Those people included the Vice President, “senior
leaders of the Justice Department,” the Director of National Intelligence, the Department of
Homeland Security’s Cybersecurity and Infrastructure Security Agency, “Senior White House
attorneys,” “Senior staffers on the Defendant’s 2020 re-election campaign,” state legislators and
officials, and state and federal judges. Id.
Page 2 of
Page 110 “Defendant also pursued unlawful means of discounting legitimate votes and subverting
the election results.” Id. ¶ 4. Specifically, he “targeted a bedrock function of the United States
federal government: the nation’s process of collecting, counting, and certifying the results of the
presidential election.” Id. The Indictment describes that process:
The Constitution provided that individuals called electors select the president, and
that each state determine for itself how to appoint the electors apportioned to it.
Through state laws, each of the fifty states and the District of Columbia chose to
select their electors based on the popular vote in the state. After election day, the
[Electoral Count Act (“ECA”)] required each state to formally determine—or
‘ascertain’—the electors who would represent the state’s voters by casting electoral
votes on behalf of the candidate who had won the popular vote, and required the
executive of each state to certify to the federal government the identities of those
electors. Then, on a date set by the ECA, each state’s ascertained electors were
required to meet and collect the results of the presidential election—that is, to cast
electoral votes based on their state’s popular vote, and to send their electoral votes,
along with the state executive’s certification that they were the state’s legitimate
electors, to the United States Congress to be counted and certified in an official
proceeding. Finally, the Constitution and ECA required that on the sixth of January
following election day, the Congress meet in a Joint Session for a certification
proceeding, presided over by the Vice President as President of the Senate, to count
the electoral votes, resolve any objections, and announce the result—thus certifying
the winner of the presidential election as president-elect.
Id. ¶ 9.
Defendant, along with at least six co-conspirators, id. ¶ 8, undertook efforts “to impair,
obstruct, and defeat [that process] through dishonesty, fraud, and deceit,” id. ¶ 10. Those efforts
took five alleged forms:
First, they “used knowingly false claims of election fraud to get state legislators and
election officials to subvert the legitimate election results and change electoral votes for the
Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant.” Id. ¶ 10(a).
“That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states
to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and
Page 3 of
Page 111 ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the
Defendant.” Id.; see id. ¶¶ 13–52.
Second, they “organized fraudulent slates of electors in seven targeted states (Arizona,
Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic
the procedures that the legitimate electors were supposed to follow under the Constitution and
other federal and state laws.” Id. ¶ 10(b). “This included causing the fraudulent electors to meet
on the day appointed by federal law on which legitimate electors were to gather and cast their
votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they
were legitimate electors.” Id.; see id. ¶¶ 53–69. They “then caused these fraudulent electors to
transmit their false certificates to the Vice President and other government officials to be counted
at the certification proceeding on January 6,” 2021. Id. ¶ 10(b); see id. ¶¶ 53–69.
Third, they “attempted to use the power and authority of the Justice Department to
conduct sham election crime investigations and to send a letter to the targeted states that falsely
claimed that the Justice Department had identified significant concerns that may have impacted
the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the
Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to
the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’
legislatures to convene to create the opportunity to choose the fraudulent electors over the
legitimate electors.” Id. ¶ 10(c); see id. ¶¶ 70–85.
Fourth, “using knowingly false claims of election fraud,” they “attempted to convince the
Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or
send legitimate electoral votes to state legislatures for review rather than counting them.” Id.
¶ 10(d). “When that failed, on the morning of January 6,” they “repeated knowingly false claims
Page 4 of
Page 112 of election fraud to gathered supporters, falsely told them that the Vice President had the
authority to and might alter the election results, and directed them to the Capitol to obstruct the
certification proceeding and exert pressure on the Vice President to take the fraudulent actions he
had previously refused.” Id.; see id. ¶¶ 86–105.
Fifth, “on the afternoon of January 6,” once “a large and angry crowd—including many
individuals whom the Defendant had deceived into believing the Vice President could and might
change the election results—violently attacked the Capitol and halted the proceeding,” they
“exploited the disruption by redoubling efforts to levy false claims of election fraud and
convince members of Congress to further delay the certification based on those claims.” Id.
¶ 10(e); see id. ¶¶ 106–124.
Based on this conduct, the Indictment charges Defendant with four counts: Conspiracy to
Defraud the United States, in violation of 18 U.S.C. § 371, id. ¶ 6; Conspiracy to Obstruct an
Official Proceeding, in violation of 18 U.S.C. § 1512(k), id. ¶ 126; Obstruction of, and Attempt
to Obstruct, an Official Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), 2, id. ¶ 128; and
Conspiracy Against Rights, in violation of 18 U.S.C. § 241, id. ¶ 130.
II.
LEGAL STANDARD
A criminal defendant may move to dismiss based on a “defect in the indictment,” such as
a “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). That motion may be based—as
it is here—on constitutional challenges to the prosecution, including the assertion of immunity.
See, e.g., United States v. Stone, 394 F. Supp. 3d 1, 8 (D.D.C. 2019). “Because a court’s use of
its supervisory power to dismiss an indictment directly encroaches upon the fundamental role of
the grand jury, dismissal is granted only in unusual circumstances.” United States v. Fischer, F.4th 329, 334–35 (D.C. Cir. 2023) (formatting modified).
Page 5 of
Page 113 III.
EXECUTIVE IMMUNITY
Defendant contends that the Constitution grants him “absolute immunity from criminal
prosecution for actions performed within the ‘outer perimeter’ of his official responsibility”
while he served as President of the United States, so long as he was not both impeached and
convicted for those actions. Immunity Motion at 8, 11–13 (formatting modified). The
Constitution’s text, structure, and history do not support that contention. No court—or any other
branch of government—has ever accepted it. And this court will not so hold. Whatever
immunities a sitting President may enjoy, the United States has only one Chief Executive at a
time, and that position does not confer a lifelong “get-out-of-jail-free” pass. Former Presidents
enjoy no special conditions on their federal criminal liability. Defendant may be subject to
federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts
undertaken while in office.
A. Text
In interpreting the Constitution, courts ordinarily “begin with its text,” City of Boerne v.
Flores, 521 U.S. 507, 519 (1997), but there is no provision in the Constitution conferring the
immunity that Defendant claims. The Supreme Court has already noted “the absence of explicit
constitutional . . . guidance” on whether a President possesses any immunity. Nixon v.
Fitzgerald, 457 U.S. 731, 747 (1982) (“Fitzgerald”); see also United States v. Nixon, 418 U.S.
683, 705–06 n.16 (1974) (“Nixon”) (observing “the silence of the Constitution” regarding a
President’s immunity from criminal subpoenas). The Executive Branch has likewise recognized
that “the Constitution provides no explicit immunity from criminal sanctions for any civil
officer,” including the current President. A Sitting President’s Amenability to Indictment and
Criminal Prosecution, 24 U.S. Op. Off. Legal Counsel 222, 2000 WL 33711291, at *9 (2000)
(“OLC Immunity Memo”) (quoting Memorandum for the United States Concerning the Vice
Page 6 of
Page 114 President’s Claim of Constitutional Immunity at 4 (filed Oct. 5, 1973), In re Proceedings of the
Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the
United States (D. Md. 1973) (No. 73-965) (“1973 SG Memo”), available at 27 Hofstra L. Rev.
677, 775–97 (Appendix)) (alterations adopted). There is no “Presidential Immunity” Clause.
The lack of constitutional text is no accident; the Framers explicitly created immunity for
other officials. The Constitution’s Speech and Debate Clause provides that “Senators and
Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of their respective Houses, and in
going to and returning from the same; and for any Speech or Debate in either House, they shall
not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. And some Founding-Era
state constitutions, like those of Virginia and Delaware, unequivocally protected their Governor
from certain penal sanctions, at least until “he [was] out of office.” Saikrishna Bangalore
Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021) (quoting
Va. Const. of 1776, art. XVI); accord id. at 69–70 (quoting Del. Const. of 1776, art. XXIII). The
U.S. Constitution contains no equivalent protections for the President.
Nor is the Constitution silent on the question because its drafters and ratifiers assumed
the President would enjoy the immunity Defendant claims. To the contrary, America’s founding
generation envisioned a Chief Executive wholly different from the unaccountable, almost
omnipotent rulers of other nations at that time. In Federalist No. 69—titled “The Real Character
of the Executive”—Alexander Hamilton emphasized the “total dissimilitude between [the
President] and the king of Great Britain,” the latter being “sacred and inviolable” in that “there is
no constitutional tribunal to which he is amenable; no punishment to which he can be subjected.”
The Federalist Papers by Alexander Hamilton, James Madison and John Jay 348–49 (Garry
Page 7 of
Page 115 Wills ed. 1982). 2 Hamilton’s contemporary commentators universally affirmed the crucial
distinction that the President would at some point be subject to criminal process. See Prakash,
100 Tex. L. Rev. at 71–75 (collecting commentary); Response, Brian C. Kalt, Criminal Immunity
and Schrödinger’s President: A Response to Prosecuting and Punishing Our Presidents, 100 Tex.
L. Rev. Online 79, 83–85 (2021) (acknowledging Founding-Era consensus that Presidents would
lack absolute criminal immunity, but noting that most commentary was ambiguous about
whether prosecution could occur during Presidency, or only after). That widely acknowledged
contrast between the President and a king is even more compelling for a former President. The
Constitution’s silence on former Presidents’ criminal immunity thus does not reflect an
understanding that such immunity existed.
Lacking an express constitutional provision, Defendant hangs his textual argument for
immunity on the Impeachment Judgment Clause, but it cannot bear the weight he places on it.
The Clause provides:
Judgment in Cases of Impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States: but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law.
U.S. Const. art. I, § 3, cl. 7. From this language, Defendant concludes “that the President may be
charged by indictment only in cases where the President has been impeached and convicted by
trial in the Senate.” Immunity Motion at 11. But Defendant is not President, and reading the
Clause to grant absolute criminal immunity to former Presidents would contravene its plain
meaning, original understanding, and common sense.

All subsequent citations to the Federalist Papers refer to this edition, and the Papers are also
available online at https://avalon.law.yale.edu/subject_menus/fed.asp.
Page 8 of
Page 116 The Clause has two parts. The first limits the penalties of impeachment to removal and
disqualification from office. That limit marked a deliberate departure from the prevailing British
tradition, in which an impeachment conviction “might result in a wide array of criminal
penalties, including fines, imprisonment, and even execution.” Whether A Former President
May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House
and Acquitted by the Senate, 24 U.S. Op. Off. Legal Counsel 110, 2000 WL 33711290, at *(2000) (“OLC Double Jeopardy Memo”) (citing 2 Joseph Story, Commentaries on the
Constitution of the United States 251–2 (1833; reprint 1994) (“Story’s Commentaries”); Richard Wooddeson, A Systematical View of the Laws of England 611–14 (1792); Raoul Berger,
Impeachment: The Constitutional Problems 67 (1974)). The second part of the Clause provides,
however, that impeachment’s limits do not preclude “the Party convicted” from later criminal
prosecution in the courts—i.e., that “further punishment[] . . . would still be available but simply
not to the legislature.” Id. at *10.
Both parts of the Clause undercut Defendant’s interpretation of it. The first begins by
defining the Clause’s scope: “Judgment in Cases of Impeachment,” indicating that the Clause is
aimed primarily at identifying the permissible penalties associated with impeachment itself. The
Clause’s second part confirms that purview. Rather than stating that “the Party convicted shall
only then be liable” to criminal prosecution, the Clause states that “the Party convicted shall
nevertheless be liable.” U.S. Const. art. I, § 3, cl. 7 (emphasis added). At the Founding, as now,
“nevertheless” meant “notwithstanding that,” and “notwithstanding that” meant “[w]ithout
hindrance or obstruction from.” Neverthele’ss, Samuel Johnson, A Dictionary Of The English
Language (1978) (4th ed. 1773), available at https://perma.cc/ST8E-RCMB; id.,
Notwithsta’nding, available at https://perma.cc/A9ML-QK4Y. In the Impeachment Judgment
Page 9 of
Page 117 Clause, the word “nevertheless” in the second part thus signifies that the first part—constraining
impeachment’s penalties—does not bear on whether the Party would also be subject to criminal
prosecution. See OLC Immunity Memo at *2 (citing Amenability of the President, Vice
President and other Civil Officers to Federal Criminal Prosecution while in Office (1973)
(“1973 OLC Memo”), available at https://perma.cc/DM28-LHT9). As discussed at greater
length below, the Clause’s manifest purpose—and originally understood effect—was therefore
“to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a
double jeopardy argument.” Id. (citation omitted); see infra Section V.B. That is quite different
from establishing impeachment and conviction as a prerequisite to a former President’s criminal
prosecution.
The historical sources that Defendant cites do not move the needle. First, he quotes
Alexander Hamilton’s twin statements in The Federalist that the “President of the United States
would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high
crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution
and punishment in the ordinary course of law,” Federalist No. 69 at 348, and that the President
would be “at all times liable to impeachment, trial, dismission from office, incapacity to serve in
any other, and to forfeiture of life and estate by subsequent prosecution in the common course of
law,” Federalist No. 77 at 392. Immunity Motion at 12. But those statements merely echo the
Clause’s clarification that prosecution may follow impeachment; they do not say that those
events must happen in that order. Second, Defendant cites Founding Father James Wilson’s
remark during the ratification debates that the President “is amenable to [the laws] in his private
character as a citizen, and in his public character by impeachment.” J. Elliot, Debates on The
Federal Constitution 480 (2d ed. 1863). But Wilson was describing a President in office, see id.,
Page 10 of
Page 118 and that description is entirely consistent with a former President—having returned to life “as a
citizen”—being subject to criminal prosecution. There is no evidence that any of the
Constitution’s drafters or ratifiers intended or understood former Presidents to be criminally
immune unless they had been impeached and convicted, much less a widespread consensus that
the Impeachment Judgment Clause would have that effect.
In addition to lacking textual or historical support, Defendant’s interpretation of the
Clause collapses under the application of common sense. For one, his reasoning is based on the
logical fallacy of “denying the antecedent.” See, e.g., New LifeCare Hosps. of N.C. LLC v. Azar,
466 F. Supp. 3d 124, 136 n.7 (D.D.C. 2020). From the statement “if the animal is a cat, it can be
a pet,” it does not follow that “if the animal is not a cat, it cannot be a pet.” Yet Defendant
argues that because a President who is impeached and convicted may be subject to criminal
prosecution, “a President who is not convicted may not be subject to criminal prosecution.”
Immunity Motion at 11. Even assuming that negative implication finds some traction when
applied to sitting Presidents, see, e.g., Trump v. Vance, 140 S. Ct. 2412, 2444–45 (2020) (Alito,
J., dissenting) (discussing that implication); but see OLC Immunity Memo at *2–3 (restating the
1973 OLC Memo’s rejection of the implication); see also infra Section V.B (discussing the
implication for double jeopardy purposes), the logic certainly does not hold for former
Presidents. That is because there is another way, besides impeachment and conviction, for a
President to be removed from office and thus subjected to “the ordinary course of law,”
Federalist No. 69 at 348: As in Defendant’s case, he may be voted out. The President “shall
hold his Office during the Term of four Years.” U.S. Const. art. II, § 1, cl. 1. Without
reelection, the expiration of that term ends a Presidency as surely as impeachment and
conviction. See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit
Page 11 of
Page 119 Justice) (“[T]he president is elected from the mass of the people, and, on the expiration of the
time for which he is elected, returns to the mass of the people again.”). Nothing in the
Impeachment Judgment Clause prevents criminal prosecution thereafter.
Defendant’s reading of the Impeachment Judgment Clause also proves too much. If the
Clause required impeachment and conviction to precede criminal prosecution, then that
requirement would apply not only to the President, but also to the “Vice President and all civil
Officers of the United States”—who may likewise be impeached. U.S. Const. art. II, § 4. “The
constitutional practice since the Founding, however, has been to prosecute and even imprison
civil officers other than the President . . . prior to their impeachment.” OLC Immunity Memo at
*2 (citing 1973 OLC Memo at 4–7 (collecting sources)). For instance, then-Vice President
Aaron Burr was indicted without being impeached, see 1973 SG Memo at 12, and the same fate
might have befallen Vice President Spiro Agnew had he not resigned and entered a nolo
contendere plea, see United States v. Agnew, 428 F. Supp. 1293, 1293 (D. Md. 1977). Not only
would Defendant’s interpretation contradict that long-settled practice, it would also introduce
significant “complications into criminal proceedings” for all current and former federal officials,
including “threshold constitutional questions” of “whether the suspect is or was an officer of the
United States,” and “whether the offense is one for which he could be impeached.” OLC
Immunity Memo at *3 (citing 1973 OLC Memo at 7). The clash with historical practice and
difficulties in application that would flow from Defendant’s interpretation further confirm that it
cannot be the correct reading of the Clause.
Finally, Defendant’s interpretation of the Impeachment Judgment Clause would produce
implausibly perverse results. The Constitution permits impeachment and conviction for a limited
category of offenses: “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const.
Page 12 of
Page 120 art. II, § 4. Under Defendant’s reading, if a President commits a crime that does not fall within
that limited category, and so could not be impeached and convicted, the President could never be
prosecuted for that crime. Alternatively, if Congress does not have the opportunity to impeach
or convict a sitting President—perhaps because the crime occurred near the end of their term, or
is covered up until after the President has left office—the former President similarly could not be
prosecuted. Defendant seems to suggest that this scenario, in which the former President would
be utterly unaccountable for their crimes, is simply the price we pay for the separation of powers.
See Reply in Support of Immunity Motion, ECF No. 122, at 6 (quoting Morrison v. Olson, U.S. 654, 710 (1988) (Scalia, J., dissenting) (“While the separation of powers may prevent us
from righting every wrong, it does so in order to ensure that we do not lose liberty.”)). 3 That
cannot be the Clause’s meaning. The constitutional limits on impeachment’s penalties do not
license a President’s criminal impunity.
In sum, nothing in the Constitution’s text supplies the immunity that Defendant claims.
To be sure, “a specific textual basis has not been considered a prerequisite to the recognition of
immunity,” and so the inquiry is not confined to the express terms of our founding charter.
Fitzgerald, 457 U.S. at 750 n.31. But the lack of supporting constitutional text does mean that a
former President’s federal criminal immunity, if it exists, must arise entirely from “concerns of
public policy, especially as illuminated by our history and the structure of our government.” Id.
at 747–48. Defendant’s resort to those principles fares no better.

Even assuming that former as well as sitting Presidents may be impeached, this hypothetical
would still produce problematic results. Congress could enable a former President’s criminal
prosecution by impeaching them after they have left office. But it would raise serious
separation of powers concerns to restrain the core executive act of prosecuting a private
citizen—as a former President would then be—until Congress chose to do so. See infra
Section III.B.2.
Page 13 of
Page 121 B. Structure
The Supreme Court has cautioned against forms of Presidential liability that “rise to the
level of constitutionally forbidden impairment of the Executive’s ability to perform its
constitutionally mandated functions.” Clinton v. Jones, 520 U.S. 681, 702 (1997). But the
prospect of federal criminal liability for a former President does not violate that structural
principle, either by imposing unacceptable risks of vexatious litigation or by otherwise chilling
the Executive’s decision-making process. Indeed, it is likely that a President who knows that
their actions may one day be held to criminal account will be motivated to take greater care that
the laws are faithfully executed. More fundamentally, federal criminal liability is essential to the
public’s interest in our “historic commitment to the rule of law . . . nowhere more profoundly
manifest than in our view that ‘the twofold aim of criminal justice is that guilt shall not escape or
innocence suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger v. United States, 295 U.S. 78, (1935)) (formatting modified). The Presidency’s unique responsibilities do not exempt its
former occupants from that commitment.
In Fitzgerald, the Supreme Court explained the structural analysis for Presidential
immunity. In that case, civil plaintiff A. Ernest Fitzgerald claimed that President Richard Nixon
had been involved in unlawfully firing him from his government job and sought money damages
against the former President. 457 U.S. at 733–41. The five-Justice majority noted it was “settled
law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the
President of the United States.” Id. at 753–54 (citations omitted). But it instructed that “a court,
before exercising jurisdiction, must balance the constitutional weight of the interest to be served
against the dangers of intrusion on the authority and functions of the Executive Branch.” Id. at
754 (citations omitted). “When judicial action is needed to serve broad public interests—as
when the Court acts, not in derogation of the separation of powers, but to maintain their proper
Page 14 of
Page 122 balance, or to vindicate the public interest in an ongoing criminal prosecution—the exercise of
jurisdiction has been held warranted.” Id. (first citing Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952), then citing Nixon, 418 U.S. 731). Ultimately, the Court found that a
“merely private suit for damages based on a President’s official acts” did not serve those
interests, and held that a former President could remain immune from such suits. Id. For a
federal criminal prosecution, however, the analysis comes out the other way.
1. Burdens on the Presidency
At the outset, it bears noting that it is far less intrusive on the functions of the Executive
Branch to prosecute a former President than a sitting one. The Supreme Court has accepted at
least “the initial premise” that the President “occupies a unique office with powers and
responsibilities so vast and important that the public interest demands that he devote his
undivided time and attention to his public duties.” Clinton, 520 U.S. at 697–98. And the Office
of Legal Counsel has identified three burdens of criminal prosecution that could impede the
performance of that constitutional role:
(a) the actual imposition of a criminal sentence of incarceration, which would make
it physically impossible for the President to carry out his duties; (b) the public
stigma and opprobrium occasioned by the initiation of criminal proceedings, which
could compromise the President’s ability to fulfill his constitutionally contemplated
leadership role with respect to foreign and domestic affairs; and (c) the mental and
physical burdens of assisting in the preparation of a defense for the various stages
of the criminal proceedings, which might severely hamper the President’s
performance of his official duties.
OLC Immunity Memo at *19. But none of those burdens would result from the criminal
prosecution of a former President, who is no longer performing official duties. Accordingly, the
separation-of-powers concerns are significantly diminished in this context.
Fitzgerald nonetheless suggested that the prospect of post-Presidency civil liability might
“distract a President from his public duties, to the detriment of not only the President and his
Page 15 of
Page 123 office but also the Nation that the Presidency was designed to serve.” 457 U.S. at 753. The
Supreme Court highlighted two concerns: (1) the public interest in providing the President “the
maximum ability to deal fearlessly and impartially with the duties of his office,” and (2) the fact
that given the “visibility of his office and the effect of his actions on countless people, the
President would be an easily identifiable target for suits for civil damages.” Id. at 752–(quotation omitted). Defendant correspondingly focuses his arguments for immunity on (1) “the
chilling effect personal liability would have on the President’s decision-making,” and (2) the
“potential criminal prosecutions” former Presidents could face from “local, state, or subsequent
federal officials.” Immunity Motion at 9–10. He contends that “[c]ognizance of this personal
vulnerability frequently could distract a President from his public duties, to the detriment of not
only the President and his office but also the Nation that the Presidency was designed to serve.”
Id. at 10 (quoting Fitzgerald, 457 U.S. at 753).
Those concerns do not carry the same weight in the context of a former President’s
federal criminal prosecution. First, the Supreme Court has largely rejected similar claims of a
“chilling effect” from the possibility of future criminal proceedings. During the Watergate
prosecution, President Nixon argued that if recordings of his conversations were subject to
criminal subpoena, the Presidential decision-making process would be compromised because his
staff would be less candid. Nixon, 418 U.S. at 705–06. The Court disagreed, stating that it
“cannot conclude that advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such conversations will be
called for in the context of a criminal prosecution.” Id. at 712. The Court quoted Justice
Cardozo’s unanimous opinion finding that a jury’s decision-making process would not be
meaningfully chilled if jurors’ conduct were later subject to criminal prosecution:
Page 16 of
Page 124 A juror of integrity and reasonable firmness will not fear to speak his mind if the
confidences of debate are barred to the ears of mere impertinence of malice. He
will not expect to be shielded against the disclosure of his conduct in the event that
there is evidence reflecting upon his honor. The chance that now and then there
may be found some timid soul who will take counsel of his fears and give way to
their repressive power is too remote and shadowy to shape the course of justice.
Id. n.20 (quoting Clark v. United States, 289 U.S. 1, 16 (1933)).
The same reasoning applies here. There is no doubt that “a President must concern
himself with matters likely to arouse the most intense feelings.” Fitzgerald, 457 U.S. at (internal quotation marks omitted). But “[c]riminal conduct is not part of the necessary functions
performed by public officials.” United States v. Isaacs, 493 F.2d 1124, 1144 (7th Cir. 1974). By
definition, the President’s duty to “take Care that the Laws be faithfully executed” does not grant
special latitude to violate them. U.S. Const., art. II, § 3. That is especially true when the
violations require criminal intent, as is the case here, see Opp’n to Immunity Motion, ECF No.
109, at 31–32 (reviewing mens rea requirements for the Indictment’s four counts); cf. Imbler v.
Pachtman, 424 U.S. 409, 429 (1976) (noting that even public officials “cloaked with absolute
civil immunity . . . could be punished criminally” for their “willful acts”). Like his fellow
citizens serving on juries, then, a President “of integrity and reasonable firmness” will not fear to
carry out his lawful decision-making duties—even on hot-button political issues—and “will not
expect to be shielded against the disclosure of his conduct in the event that there is evidence
reflecting upon his honor.” Clark, 289 U.S. at 16. The rationale for immunizing a President’s
controversial decisions from civil liability does not extend to sheltering his criminality.
Indeed, the possibility of future criminal liability might encourage the kind of sober
reflection that would reinforce rather than defeat important constitutional values. If the specter
of subsequent prosecution encourages a sitting President to reconsider before deciding to act
with criminal intent, that is a benefit, not a defect. “Where an official could be expected to know
Page 17 of
Page 125 that certain conduct would violate statutory or constitutional rights, he should be made to
hesitate.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Consequently, to the extent that
there are any cognizable “chilling effects” on Presidential decision-making from the prospect of
criminal liability, they raise far lesser concerns than those discussed in the civil context of
Fitzgerald. Every President will face difficult decisions; whether to intentionally commit a
federal crime should not be one of them.
Second, the possibility of vexatious post-Presidency litigation is much reduced in the
criminal context. Defendant protests that denying him immunity would subject future Presidents
to “prosecution in countless federal, state, and local jurisdictions across the country,” Immunity
Motion at 10, but that is incorrect. To begin, Defendant is only charged with federal crimes in
this case, so any ruling here will be limited to that context and would not extend to state or local
prosecutions—which in any event might run afoul of the Supremacy Clause, see Vance, S. Ct. at 2428 (“The Supremacy Clause prohibits state judges and prosecutors from interfering
with a President’s official duties. . . . Any effort to manipulate a President's policy decisions or to
‘retaliat[e]’ against a President for official acts . . . would thus be an unconstitutional attempt to
‘influence’ a superior sovereign ‘exempt’ from such obstacles.” (citations omitted)). And as
Defendant well knows, see infra Section V.A, a person cannot “be subject for the same offence
to be twice put in jeopardy of life or limb,” U.S. Const., amend. V. Consequently, denying
Defendant immunity here means only that a former President may face one federal prosecution,
in one jurisdiction, for each criminal offense allegedly committed while in office. That
consequence stands in contrast to the civil context, where “the effect of [the President’s] actions
on countless people” could result in untold numbers of private plaintiffs suing for damages based
on any number of Presidential acts. Fitzgerald, 457 U.S. at 753.
Page 18 of
Page 126 Defendant also warns that if he is not given immunity here, criminal prosecutions will
“bedevil[] every future Presidential administration and usher[] in a new era of political
recrimination and division.” Immunity Motion at 11. But, as the Supreme Court noted when
faced with a similar argument in Clinton, that “predictive judgment finds little support in either
history or the relatively narrow compass of the issues raised in this particular case.” 520 U.S. at
702. As Defendant acknowledges, he is the only former President in United States history to
face criminal charges for acts committed while in office. See Immunity Motion at 15. “If the
past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the
Presidency.” Clinton, 520 U.S. at 702. Despite Defendant’s doomsaying, he points to no
evidence that his criminal liability in this case will open the gates to a waiting flood of future
federal prosecutions.
The robust procedural safeguards attendant to federal criminal prosecutions further
reduce the likelihood that former Presidents will be unjustly harassed. Prosecutors themselves
are constitutionally bound to not abuse their office, which is why “courts presume that they have
properly discharged their official duties.” United States v. Armstrong, 517 U.S. 456, 464 (1996)
(quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)). And a federal
indictment is issued by a grand jury, which is similarly “prohibited from engaging in ‘arbitrary
fishing expeditions’ and initiating investigations ‘out of malice or an intent to harass.’” Vance,
140 S. Ct. at 2428 (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)). Even
after indictment, “in the event of such harassment, a [former] President would be entitled to the
protection of federal courts,” which “have the tools to deter and, where necessary, dismiss”
vexatious prosecutions. Id. For instance, if a prosecution is politically motivated, as Defendant
has argued in this case, that alone may warrant dismissal. See Motion to Dismiss Case for
Page 19 of
Page 127 Selective and Vindictive Prosecution, ECF No. 116. And if a meritless prosecution somehow
reached trial, a former President would still have the opportunity to put the government’s proof
to the test. See U.S. Const., art. III, § 2, cl. 3.
In short, the concerns discussed in the civil context of Fitzgerald find no meaningful
purchase here. A former President accused of committing a crime while in office will be subject
to only one federal prosecution for that offense, which in turn will only result in conviction if the
grand jury finds probable cause and the prosecutor, judge, and all twelve petit jurors agree that
the charges are legitimate and have been proven beyond a reasonable doubt. Throughout that
process, a former President “may avail himself of the same protections available to every other
citizen.” Vance, 140 S. Ct. at 2430. In the rare case when a former President must do so, the
Constitution does not proffer the sledgehammer of absolute immunity where the scalpel of
procedural protections will suffice. See Burr, 25 F. Cas. at 34 (“The guard, furnished to this high
officer [the President], to protect him from being harassed by vexatious and unnecessary
subpoenas, is to be looked for in the conduct of a court after those subpoenas have issued; not in
any circumstance which is to [] precede their being issued.”). The possibility of future harassing
federal criminal prosecution will not cast so “serious” a shadow on the Presidency that its current
occupant cannot fulfill its duties. Clinton, 520 U.S. at 708.
2. Public interest
On the other of side of the scale, the public interest in the prosecution of this case carries
grave weight. The Supreme Court has repeatedly underscored its judgment that “the public
interest in fair and accurate judicial proceedings is at its height in the criminal setting.” Vance,
140 S. Ct. at 2424. It has correspondingly refused to permit other concerns, including those
asserted by Presidents, to “prevail over the fundamental demands of due process of law in the
fair administration of criminal justice.” Nixon, 418 U.S. at 713; see United States v. Gillock, Page 20 of
Page 128 U.S. 360, 373 (1980) (concluding that “principles of comity” must yield “where important
federal interests are at stake, as in the enforcement of federal criminal statutes”). Despite their
other vehement disagreements in Fitzgerald, all nine Justices unanimously endorsed that
judgment with respect to former Presidents. Justice Powell’s majority opinion specifically
contrasted the “lesser public interest in actions for civil damages than . . . in criminal
prosecutions.” 457 at 754 n.37. Chief Justice Burger’s concurrence made the same distinction.
Id. at 759–60 (distinguishing immunity “limited to civil damages claims” from “a criminal
prosecution,” as in Burr or Nixon (emphasis in original)). And Justice White’s four-member
dissent stressed that no party had argued “that the President is immune from criminal prosecution
in the courts[,] . . . [n]or would such a claim be credible.” Id. at 780. Fitzgerald was thus
undivided in contemplating that the public interest could require a former President’s criminal
liability.
Defendant resists that consensus in Fitzgerald by pointing to a single passage in the
majority opinion where, in listing the “formal and informal checks” that could replace civil
liability as a deterrent for Presidential misconduct, the Court did not specifically list criminal
liability. Id. at 757. From that omission, Defendant infers that the Court intended to suggest that
criminal liability would not be available either. Immunity Motion at 13. But the Court’s
unanimous emphasis that it was not immunizing former Presidents from federal criminal liability
squarely refutes that inference. If anything, the omission underscores that civil and criminal
liability are so fundamentally distinct that they cannot be understood as substitutes for one
another. Accordingly, in the parallel context of cases “which have recognized an immunity from
civil suit for state officials,” the Supreme Court has explicitly “presumed the existence of federal
Page 21 of
Page 129 criminal liability as a restraining factor on the conduct of state officials.” Gillock, 445 U.S.
at 372.
It is no surprise that the Supreme Court has long recognized the special public interest in
criminal law because of its distinctly communal character; that character is reflected in both the
Constitution itself and the legal tradition from which it arose. Unlike defendants in a civil
matter, for example, federal criminal defendants are constitutionally guaranteed “a speedy and
public trial” before a jury drawn from their community. U.S. Const., amend VI; id., art. III, § 2,
cl. 3. And the preeminent 18th-century legal commentator William Blackstone explained the
reason for the community’s special involvement in criminal cases: Whereas civil injuries “are an
infringement or privation of the civil rights which belong to individuals, considered merely as
individuals,” crimes “are a breach and violation of the public rights and duties due to the whole
community, considered as a community.” 4 William Blackstone, Commentaries *5. The
fundamentally public interest in a criminal prosecution explains why it “may proceed without the
consent of the victim and why it is brought in the name of the sovereign rather than the person
immediately injured by the wrong.” OLC Immunity Memo at *22. Put differently, the very
name of this case confirms the public’s particular stake in its adjudication: it is the United States
of America v. Donald J. Trump.
Congress has also affirmed the special public interests in enforcing the criminal law. In
the Sentencing Reform Act of 1984, it required every federal court to consider certain factors in
imposing sentence, and declared “the need for the sentence imposed”:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
Page 22 of
Page 130 (D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2); see Pub. L. 98-473, title II, § 212(a)(2) (1984). The public has an
undisputed interest in promoting respect for the law, deterring crime, protecting itself, and
rehabilitating offenders. All of those interests would be thwarted by granting former Presidents
absolute criminal immunity.
The fact that Congress has spoken by criminalizing the conduct with which Defendant is
charged also highlights the separation of powers principles that counsel in favor of the court
retaining jurisdiction over this case. “When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown, 343 U.S. at
637 (Jackson, J., concurring). Congress could have penalized the conduct alleged in this case—
if it chose to penalize it at all—with mere civil liability, perhaps allowing for monetary damages
should a private plaintiff choose to bring suit. Instead, it expressed a far stronger condemnation
by subjecting that conduct to the severe consequences of the criminal law. “Whatever may be
the case with respect to civil liability” for former Presidents, then, “the judicially fashioned
doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed
by an Act of Congress.’” O’Shea v. Littleton, 414 U.S. 488, 503 (1974) (quoting Gravel v.
United States, 408 U.S. 606, 627 (1972)). Indeed, stretching the doctrine so far would also
“imped[e] . . . the primary constitutional duty of the Judicial Branch to do justice in criminal
prosecutions,” Nixon, 418 U.S. at 707, not to mention the current President’s duty to enforce the
criminal law, see U.S. Const., art. II, § 3. Holding a former President absolutely immune would
thus impinge on the functions of all three branches with respect to the criminal law: Congress’s
province to make it, the Executive’s prerogative to enforce it, and the Judiciary’s charge to
apply it.
Page 23 of
Page 131 Most importantly, a former President’s exposure to federal criminal liability is essential
to fulfilling our constitutional promise of equal justice under the law. “The government of the
United States has been emphatically termed a government of laws, and not of men.” Marbury v.
Madison, 5 U.S. 137, 163 (1803). As the Supreme Court has stated, that principle must govern
citizens and officials alike:
No officer of the law may set that law at defiance with impunity. All the officers
of the government, from the highest to the lowest, are creatures of the law, and are
bound to obey it. It is the only supreme power in our system of government, and
every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it
imposes upon the exercise of the authority which it gives.
United States v. Lee, 106 U.S. 196, 220 (1882).
Perhaps no one understood the compelling public interest in the rule of law better than
our first former President, George Washington. His decision to voluntarily leave office after two
terms marked an extraordinary divergence from nearly every world leader who had preceded
him, ushering in the sacred American tradition of peacefully transitioning Presidential power—a
tradition that stood unbroken until January 6, 2021. In announcing that decision, however,
Washington counseled that the newfound American independence carried with it a responsibility.
“The very idea of the power and the right of the people to establish government presupposes the
duty of every individual to obey the established government.” Washington’s Farewell Address,
S. Doc. No. 106-21, at 13 (2d Sess. 2000), available at https://perma.cc/E5CZ-7NNP. He issued
a sober warning: “All obstructions to the execution of the laws,” including group arrangements
to “counteract” the “regular deliberation and action of the constituted authorities, are destructive
of this fundamental principle.” Id. at 14. In Washington’s view, such obstructions would prove
“fatal” to the Republic, as “cunning, ambitious, and unprincipled men will be enabled to subvert
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Page 132 the power of the people and to usurp for themselves the reins of government, destroying
afterwards the very engines which have lifted them to unjust dominion.” Id.
In this case, Defendant is charged with attempting to usurp the reins of government as
Washington forewarned: The Government alleges that, with the help of political associates, he
“spread lies that there had been outcome-determinative fraud in the election and that he had
actually won,” and “pursued unlawful means of discounting legitimate votes and subverting the
election results,” all because he “was determined to remain in power.” Indictment ¶¶ 2, 4. In
asserting absolute executive immunity, Defendant asks not for an opportunity to disprove those
allegations, but for a categorical exemption from criminal liability because, in his view, “the
indictment is based solely on President Trump’s official acts.” Immunity Motion at 27–28. That
obstruction to the execution of the laws would betray the public interest. “If one man can be
allowed to determine for himself what is law, every man can. That means first chaos, then
tyranny.” United States v. United Mine Workers of Am., 330 U.S. 258, 312 (1947) (Frankfurter,
J., concurring in the judgment).
For all these reasons, the constitutional consequences of federal criminal liability differ
sharply from those of the civil liability at issue in Fitzgerald. Federal criminal liability will not
impermissibly chill the decision-making of a dutiful Chief Executive or subject them to endless
post-Presidency litigation. It will, however, uphold the vital constitutional values that Fitzgerald
identified as warranting the exercise of jurisdiction: maintaining the separation of powers and
vindicating “the public interest in an ongoing criminal prosecution.” 457 U.S. at 753–54.
Exempting former Presidents from the ordinary operation of the criminal justice system, on the
other hand, would undermine the foundation of the rule of law that our first former President
described: “Respect for its authority, compliance with its laws, [and] acquiescence in its
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Page 133 measures”—“duties enjoined by the fundamental maxims of true liberty.” Washington’s
Farewell Address at 13. Consequently, the constitutional structure of our government does not
require absolute federal criminal immunity for former Presidents.
C. History
Nothing in American history justifies the absolute immunity Defendant seeks. As
discussed above, supra Section III.A, there is no evidence that the Founders understood the
Constitution to grant it, and since that time the Supreme Court “has never suggested that the
policy considerations which compel civil immunity for certain governmental officials also place
them beyond the reach of the criminal law.” Imbler, 424 U.S. at 429. Moreover, the notion that
former Presidents cannot face federal criminal charges for acts they took in office is refuted by
the “presuppositions of our political history.” Fitzgerald, 457 U.S. at 745 (quoting Tenney v.
Brandhove, 341 U.S. 367, 376 (1951)).
Start with the Executive Branch itself. “In the performance of assigned constitutional
duties each branch of the Government must initially interpret the Constitution, and the
interpretation of its powers by any branch is due great respect from the others.” Nixon, 418 U.S.
at 703. The Executive’s legal representatives—the Solicitor General and Office of Legal
Counsel—have expressly and repeatedly concluded that a former President may “be subject to
criminal process . . . after he leaves office or is removed therefrom through the impeachment
process.” OLC Immunity Memo at *12 (citing 1973 OLC Memo and 1973 SG Memo).
Naturally, the Special Counsel’s decision to bring this case also reflects that judgment,
distinguishing the Department of Justice’s position that former Presidents retain civil immunity.
See Brief for the United States as Amicus Curiae at 3 n.1 (filed Mar. 2, 2023), Blassingame v.
Trump, Nos. 22-5069, 22-7030, 22-7031 (D.C. Cir.). Even on its own, the Executive’s
Page 26 of
Page 134 longstanding and unwavering position on this issue weighs against this court unilaterally
blocking a considered prosecution by conferring absolute immunity. Historical practice also indicates that a President’s actions may later be criminally
prosecuted. In the aftermath of Watergate, for example, President Ford granted former President
Nixon “full, free, and absolute pardon . . . for all offenses against the United States which he,
Richard Nixon, has committed or may have committed or taken part in during” while in office.
Gerald Ford, Presidential Statement at 7–8 (Sept. 8, 1974), available at https://perma.cc/2GNZQQ3D. In so doing, President Ford specifically noted the “serious allegations” that, without a
pardon, would “hang like a sword over our former President’s head” until he could “obtain a fair
trial by jury.” Id. at 3; see id. at 4–5 (expressing concern about Nixon’s rights to a presumption
of innocence and a speedy trial). And former President Nixon formally accepted that “full and
absolute pardon for any charges which might be brought against me for actions taken during the
time I was President of the United States,” calling the pardon a “compassionate act.” Richard
Nixon, Statement by Former President Richard Nixon at 1 (Sept. 8, 1974), available at
https://perma.cc/WV43-6E69. Both Ford’s pardon and Nixon’s acceptance arose from the desire
to prevent the former President’s potential criminal prosecution, and both specifically refer to
that possibility—without which the pardon would have been largely unnecessary. Defendant’s
view of his own immunity thus stands at odds with that of his predecessors in the Oval Office.

Congress, the other political branch, has not spoken directly to this issue. But it has not
exempted actions taken during the Presidency from the criminal law, and “[u]nder the authority
of Art. II, § 2,” it “has vested in the Attorney General the power to conduct the criminal
litigation of the United States Government” and “to appoint subordinate officers to assist him,”
which he has done “in th[is] particular matter[]” by appointing “a Special Prosecutor.” Nixon,
418 U.S. at 694. The Government also notes the statements of individual members of
Congress—including some who voted to acquit Defendant during his impeachment trial—
anticipating that Defendant could later be criminally prosecuted for the conduct at issue. See
Opp’n to Immunity Motion at 14–15.
Page 27 of
Page 135 Granting the immunity Defendant seeks would also break with longstanding legal
precedent that all government officials—even those immune from civil claims—may be held to
criminal account. In Fitzgerald, for instance, the Supreme Court analogized former President
Nixon’s civil immunity to the similar protections provided to judges and prosecutors. 457 U.S.
at 745–48. Unlike most government officials, who only receive “qualified” civil immunity,
prosecutors and judges have absolute civil immunity due to “the especially sensitive duties” of
their office and the public interest in their “liberty to exercise their functions with independence
and without fear of consequences.” Id. at 745–46 (quotation omitted); see, e.g., Imbler, 424 U.S.
at 431 (state prosecutors possess absolute civil immunity for prosecutions); Stump v. Sparkman,
435 U.S. 349, 359–60 (1978) (state judges possess absolute civil immunity for judicial acts). But
notwithstanding their absolute civil immunity, prosecutors and judges are “subject to criminal
prosecutions as are other citizens.” Dennis v. Sparks, 449 U.S. 24, 31 (1980); see Imbler, U.S. at 429. Thus, while in Fitzgerald the “careful analogy to the common law absolute
immunity of judges and prosecutors” demonstrated history’s support for the former President’s
civil immunity, Vance, 140 S. Ct. at 2426, here that same history compels the denial of a former
President’s criminal immunity.
Against the weight of that history, Defendant argues in essence that because no other
former Presidents have been criminally prosecuted, it would be unconstitutional to start now.
Immunity Motion at 15–16. But while a former President’s prosecution is unprecedented, so too
are the allegations that a President committed the crimes with which Defendant is charged. See
infra Section VI.B. The Supreme Court has never immunized Presidents—much less former
Presidents—from judicial process merely because it was the first time that process had been
Page 28 of
Page 136 necessary. See, e.g., Vance, 140 S. Ct. at 2424–25; Clinton, 520 U.S. at 692; Nixon, 418 U.S. at
703; Burr, 25 F. Cas. at 32. The court will not do so here.
In any event, Defendant’s reasoning turns the relevant historical analysis on its head. In
Clinton, the President likewise argued that the relative dearth of cases in which “sitting
Presidents ha[d] been defendants in civil litigation involving their actions prior to taking office”
meant that the Constitution afforded him temporary immunity for such claims. 520 U.S. at 692;
see Brief for the Petitioner, 1996 WL 448096, at *17–18, Clinton v. Jones, No. 95-1853 (U.S.).
The Court found instead that the dearth of similar cases meant that there was no “basis of
precedent” for the immunity that President Clinton sought—and in fact showed that there was
little risk of such litigation impeding the Presidency going forward. Clinton, 520 U.S. at 692,
702. In other words, a defendant cannot claim that history supports their immunity by pointing
to the fact that their immunity has never been asserted. Here, as in Clinton, that absence of
precedent negates rather than validates Defendant’s argument that history establishes his
immunity from criminal prosecution.
*
*
*
For these reasons, the court cannot conclude that our Constitution cloaks former
Presidents with absolute immunity for any federal crimes they committed while in office. Our
nation’s “historic commitment to the rule of law” is “nowhere more profoundly manifest than in
our view that ‘the twofold aim of criminal justice is that guilt shall not escape or innocence
suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger, 295 U.S. at 88) (formatting modified).
Nothing in the Constitution’s text or allocation of government powers requires exempting former
Presidents from that solemn process. And neither the People who adopted the Constitution nor
those who have safeguarded it across generations have ever understood it to do so. Defendant’s
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Page 137 four-year service as Commander in Chief did not bestow on him the divine right of kings to
evade the criminal accountability that governs his fellow citizens. “No man in this country,” not
even the former President, “is so high that he is above the law.” Lee, 106 U.S. at 220.
Consistent with its duty to not “decide questions of a constitutional nature unless
absolutely necessary to a decision,” Clinton, 520 U.S. at 690 & n.11 (quoting Burton v. United
States, 196 U.S. 283, 295 (1905)), the court emphasizes the limits of its holding here. It does not
decide whether former Presidents retain absolute criminal immunity from non-federal
prosecutions, or whether sitting Presidents are entitled to greater immunity than former ones.
Similarly, the court expresses no opinion on the additional constitutional questions attendant to
Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within
the outer perimeter of the President’s official” responsibility. Immunity Motion at (formatting modified). Even if the court were to accept that assertion, it could not grant
Defendant immunity here without resolving several separate and disputed constitutional
questions of first impression, including: whether the President’s duty to “take Care that the Laws
be faithfully executed” includes within its “outer perimeter” at least five different forms of
indicted conduct; 5 whether inquiring into the President’s purpose for undertaking each form of
that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and
whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions

As another court in this district observed in a decision regarding Defendant’s civil immunity,
“[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers
and calls on the court to assess the limits of a President’s functions. And, historical examples
to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022);
see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed
that district court’s decision with an extensive analysis of just one form of conduct—“speech
on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip
op. at 23–42 (D.C. Cir. Dec. 1, 2023).
Page 30 of
Page 138 also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents
do not possess absolute federal criminal immunity for any acts committed while in office,
however, the court need not reach those additional constitutional issues, and it expresses no
opinion on them.
IV.
FIRST AMENDMENT
In his Constitutional Motion, Defendant first argues that the Indictment should be
dismissed because it criminalizes his speech and therefore violates the First Amendment. But it
is well established that the First Amendment does not protect speech that is used as an instrument
of a crime, and consequently the Indictment—which charges Defendant with, among other
things, making statements in furtherance of a crime—does not violate Defendant’s First
Amendment rights.
A. The First Amendment and criminal prosecutions
The First Amendment provides, in relevant part, that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. Generally, “the First Amendment
means that government has no power to restrict expression because of its message, its ideas, its
subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting
Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002)). In restricting the government’s
power to control speech, the First Amendment “embodies ‘our profound national commitment to
the free exchange of ideas.’” Ashcroft, 535 U.S. at 573 (citation omitted).
The right to freedom of speech is “not absolute,” however. Id. It is fundamental First
Amendment jurisprudence that prohibiting and punishing speech “integral to criminal conduct”
does not “raise any Constitutional problem.” Stevens, 559 U.S. at 468–69 (citation omitted);
accord Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498–502 (1949). “Many long
established” criminal laws permissibly “criminalize speech . . . that is intended to induce or
Page 31 of
Page 139 commence illegal activities,” United States v. Williams, 553 U.S. 285, 298 (2008), such as fraud,
bribery, perjury, extortion, threats, incitement, solicitation, and blackmail, see, e.g., Stevens, U.S. at 468–69 (fraud); Williams, 553 U.S. at 298 (incitement, solicitation); Citizens United v.
Fed. Election Comm’n, 558 U.S. 310, 356 (2010) (bribery); Rice v. Paladin Enters., Inc., F.3d 233, 244 (4th Cir. 1997) (extortion, threats, blackmail, perjury). Prosecutions for
conspiring, directing, and aiding and abetting do not run afoul of the Constitution when those
offenses are “carried out through speech.” Nat’l Org. for Women v. Operation Rescue, 37 F.3d
646, 655–56 (D.C. Cir. 1994) (directing and aiding and abetting); see Williams, 553 U.S. at (conspiring).
B. The Indictment does not violate the First Amendment
The Indictment alleges that Defendant used specific statements as instruments of the
criminal offenses with which he is charged: conspiring to fraudulently obstruct the federal
function for collecting, counting, and certifying the results of the Presidential election, in
violation of 18 U.S.C. § 371 (Count I); corruptly obstructing and conspiring to obstruct
Congress’s certification of the election results, in violation of 18 U.S.C. §§ 1512(c)(2) and (k)
(Counts II and III); and conspiring to deprive citizens of their constitutional right to have their
votes counted, in violation of 18 U.S.C § 241 (Count IV). See Indictment ¶¶ 5–130.
That Defendant’s alleged criminal conduct involved speech does not render the
Indictment unconstitutional. The Indictment notes that “Defendant had a right, like every
American, to speak publicly about the election and even to claim, falsely, that there had been
outcome-determinative fraud during the election and that he had won.” Id. ¶ 3. And it
enumerates Defendant’s specific statements only to support the allegations that Defendant joined
conspiracies and attempted to obstruct the election certification, such as the allegations that
Defendant knowingly made false claims about the election results, id. ¶¶ 11–12, and deceived
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Page 140 state officials to subvert the election results, id. ¶ 13–52. See, e.g., id. ¶¶ 12, 19, 22, 31–35, 37,
41, 46, 50, 52 (referencing Defendant’s statements). The Indictment therefore properly alleges
Defendant’s statements were made in furtherance of a criminal scheme.
Defendant argues that the Indictment violates the First Amendment for three primary
reasons: (1) the government may not prohibit Defendant’s core political speech on matters of
public concern, Constitutional Motion at 4–11; (2) “First Amendment protection . . . extends to
statements advocating the government to act,” id. at 12–14 (formatting modified); and
(3) Defendant reasonably believed that the 2020 Presidential Election was stolen, id. at 15–17.
1. Core political speech on matters of public concern
Defendant first claims that his statements disputing the outcome of the 2020 election is
“core political speech” that addresses a “matter[] of public concern.” Id. at 8–10. Even
assuming that is true, “core political speech” addressing “matters of public concern” is not
“immunized from prosecution” if it is used to further criminal activity. United States v. Rahman,
189 F.3d 88, 117 (2d Cir. 1999); see Stevens, 559 U.S. at 468–69. That is the case even though
Defendant was the President at the time. See Blassingame v. Trump, Nos. 22-5069, 22-7030, 227031, slip op. at 50 (D.C. Cir. Dec. 1, 2023) (Defendant is not entitled to immunity when he
“engages in speech” that “removes him[] from the First Amendment’s protections.”). As the
D.C. Circuit has recognized, “an immunity for all presidential speech on matters of public
concern …. is ‘unsupported by precedent.’” Id. at 27 (quoting Clinton, 520 U.S. at 695).
In support of his argument, Defendant first invokes various Justices’ opinions in United
States v. Alvarez, 567 U.S. 709 (2012). Constitutional Motion at 4–7. There was no majority
opinion in Alvarez; a majority of the Justices agreed only that the Stolen Valor Act, which
prohibits an individual from falsely representing that they have received “any decoration or
medal authorized by Congress for the Armed Forces of the United States,” violated the First
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Page 141 Amendment. 567 U.S. at 716, 729–30 (plurality opinion) (Kennedy, J., joined by Roberts. C.J.,
Ginsburg, J., and Sotomayor, J.); id. at 730 (Breyer, J. concurring in the judgment, joined by
Kagan, J.). One theme common to both the plurality and concurring opinions, however, was the
concern that the Stolen Valor Act prohibited only false statements and only because of their
falsity. See id. at 717–22 (plurality opinion); id. at 732 (Breyer, J. concurring). Indeed, each
opinion reiterated that laws “implicat[ing] fraud or speech integral to criminal conduct” are
constitutional. Id. at 721 (plurality opinion); accord id. at 734–36 (Breyer, J., concurring in the
judgment); id. at 747 (Alito, J., dissenting). Because it confirmed that speech involved in the
commission of a crime was not protected by the First Amendment, Alvarez did not undermine
settled precedent allowing the prosecution of speech in furtherance of criminal activity.
Second, Defendant contends that “attempts to prohibit or criminalize claims on political
disputes” constitute viewpoint discrimination. Constitutional Motion at 9–10. But Defendant is
not being prosecuted for his “view” on a political dispute; he is being prosecuted for acts
constituting criminal conspiracy and obstruction of the electoral process. Supra Section I. And
any political motives Defendant may have had in doing so do not insulate his conduct from
prosecution. E.g., Rahman, 189 F.3d at 116–17 (mixed motives do not insulate speech from
prosecution); see Gov.’s Omnibus Opp’n to Def.’s Motions to Dismiss the Indictment on
Statutory and Constitutional Grounds, ECF No. 139 at 33 (Opp’n to Constitutional Motion)
(collecting other Circuit cases). The Indictment does not unconstitutionally discriminate against
Defendant based on viewpoint.
Third, Defendant argues that even if a higher level of scrutiny does not apply to the
Indictment, it nonetheless is invalid “under any level of scrutiny” because it is “tailored to violate
free-speech rights.” Constitutional Motion at 11. Here, however, there is no level of scrutiny
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Page 142 that applies, because speech in furtherance of criminal conduct does not receive any First
Amendment protection. E.g., Stevens, 559 U.S. at 468–69. Moreover, Defendant cites no
support for his argument that the Indictment is “tailored to violate free-speech rights,” nor does
he explain how the Indictment is so tailored. See Constitutional Motion at 11 (emphasis added).
Finally, Defendant argues that the Indictment violates the First Amendment because “all
the charged conduct constitutes First Amendment protected speech.” Def.’s Reply in Support of
Motion to Dismiss Based on Constitutional Grounds, ECF No. 162 at 7–8 (“Constitutional
Reply”) (emphasis in original). He contends that to qualify as speech in furtherance of criminal
conduct, “the speech in question must ‘be integral to’ some criminal ‘conduct’ that is not itself a
form of First Amendment-protected speech or expression.” Id. (emphasis added). But again, the
Indictment does not need to list other kinds of criminal conduct in addition to speech to comply
with the First Amendment; the crimes Defendant is charged with violating may be carried out
through speech alone. See Nat’l Org. for Women, 37 F.3d at 656; supra Section IV.A.
2. Statements advocating government action
Defendant next claims the First Amendment protects “statements advocating the
government to act.” Constitutional Motion at 12–14 (formatting modified). He first contends
the Petition Clause of the First Amendment provides an absolute right to make statements
encouraging the government to act in a public forum, citing McDonald v. Smith, 472 U.S. (1985). Constitutional Motion at 12–13. The Petition Clause provides that “Congress shall
make no law . . . abridging . . . the right of the people . . . to petition the Government for a
redress of grievances.” U.S. Const. amend. I. The Clause protects individuals’ ability to
“‘communicate their will’ through direct petitions to the legislature and government officials.”
McDonald, 472 U.S. at 482 (quoting 1 Annals of Congress 738 (1789) (James Madison)). In
McDonald, however, the Supreme Court concluded that the Petition Clause did not immunize a
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Page 143 person from a libel suit based on letters the individual had sent to the President. Id. at 480–81;
see also Opp’n to Constitutional Motion at 34. The Court explained that the Petition Clause does
not have “special First Amendment status,” so “there is no sound basis for granting greater
constitutional protection” under the Petition Clause “than other First Amendment expressions.”
McDonald, 472 U.S. at 484–85. Defendant’s reliance on the Clause and its interpretation in
McDonald is therefore unavailing, as the Petition Clause does not prohibit prosecuting
Defendant’s speech any more than the Speech Clause does. The Petition Clause does not
insulate speech from prosecution merely because that speech also petitions the government.
Defendant also invokes McDonnell v. United States, 579 U.S. 550 (2016), to argue that
allowing this prosecution would risk criminalizing statements once thought to be false that
turned out to be true, such as statements made early in the COVID-19 pandemic that masks do
not stop the transmission of the virus. Constitutional Motion at 13–14. Not so. First,
McDonnell did not involve the First Amendment but rather the proper interpretation of “official
act” under the federal bribery statute, 18 U.S.C. § 201(b)(2). McDonell, 579 U.S. at 566; see
Opp’n to Constitutional Motion at 34 n.14. And neither the Indictment nor the federal statutes
under which Defendant is charged involve an “official act.” Second, Defendant is not being
prosecuted simply for making false statements, see supra at 33–34, but rather for knowingly
making false statements in furtherance of a criminal conspiracy and obstructing the electoral
process. Consequently, there is no danger of a slippery slope in which inadvertent false
statements alone are alleged to be the basis for criminal prosecution.
In his Reply brief, Defendant also raises overbreadth, arguing that under the
Government’s interpretation, the underlying statutes charged in the Indictment are
unconstitutional because they “criminalize a wide range of perfectly ordinary acts of public
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Page 144 speech and petitioning the government.” Constitutional Reply at 9–10. Assuming Defendant’s
overbreadth challenge was properly raised for the first time in his Reply brief, the statutes are not
overbroad under the Government’s view. As an initial matter, Defendant’s actions are not
entitled to First Amendment protection as “perfectly ordinary acts of public speech and
petitioning the government.” Supra Section IV.B.1–2; infra Section IV.B.3. Moreover,
Defendant fails to identify any protected acts or speech that the statutes might render
impermissible under the Government’s interpretation. See, e.g., United States v. Hansen, U.S. 762, 769–70 (2023) (A litigant must “demonstrate[] that the statute ‘prohibits a substantial
amount of protected speech’ relative to its ‘plainly legitimate sweep’” to succeed in overbreadth
challenge (citation omitted)).
3. Defendant’s statements on the 2020 Presidential Election
Finally, Defendant claims the First Amendment does not permit the government to
prosecute him for his reasonable belief that the 2020 Presidential Election was stolen.
Constitutional Motion at 15–17. He argues that the truth or falsity of his belief is not “easily
verifiable” and there is “abundant public evidence providing a reasonable basis” for his view. Id.
at 15–16. He contends that he is “entitled to mistrust the word of . . . establishment-based
government officials and draw [his] own inferences from the facts.” Id. at 17. At this stage,
however, the court must take the allegations in the Indictment as true, supra Section II, and the
Indictment alleges that Defendant made statements that he knew were false, e.g., Indictment
¶¶ 11–12; see also Opp’n to Constitutional Motion at 26–27. While Defendant challenges that
allegation in his Motion, and may do so at trial, his claim that his belief was reasonable does not
implicate the First Amendment. If the Government cannot prove beyond a reasonable doubt at
trial that Defendant knowingly made false statements, he will not be convicted; that would not
mean the Indictment violated the First Amendment.
Page 37 of
Page 145 V.
DOUBLE JEOPARDY
Defendant’s Constitutional Motion next posits that the prosecution violates double
jeopardy because Defendant was tried—and acquitted—in earlier impeachment proceedings
arising out of the same course of conduct. Constitutional Motion at 18–24. But neither
traditional double jeopardy principles nor the Impeachment Judgment Clause provide that a
prosecution following impeachment acquittal violates double jeopardy.
A. Double Jeopardy Clause
The Fifth Amendment provides that “[n]o person shall . . . be subject for the same offense
to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. To “be twice put in jeopardy
of life or limb” means to face the possibility of “multiple criminal punishments for the same
offense.” Hudson v. United States, 522 U.S. 93, 99 (citation omitted) (emphasis in original). A
purportedly civil penalty only counts in the double jeopardy context if “the statutory scheme was
so punitive in either purpose or effect . . . as to ‘transform’” it into a criminal penalty. Id.
(citation omitted).
As long as separate prosecutions charge an individual with violating different laws, the
prosecutions are considered separate “offenses” under the Double Jeopardy Clause and the
second prosecution passes constitutional muster. Denezpi v. United States, 596 U.S. 591, 597–
98 (2022). When the same “act or transaction” violates two distinct provisions of the same
statute, there are distinct offenses only if “each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). In contexts involving
different sovereigns—such as the federal government and a state government—a person may be
tried for violating laws that “have identical elements and could not be separately prosecuted if
enacted by a single sovereign.” Denezpi, 596 U.S. at 597–98.
Page 38 of
Page 146 The Indictment here does not violate double jeopardy principles. First, impeachment
threatens only “removal from Office, and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States,” U.S. Const. art. I, § 3, cl. 7, neither of which is a
criminal penalty. See supra at 9. Nor does Defendant argue that they are civil penalties that
should be construed as criminal penalties. See Constitutional Motion at 23–24. Second, the
impeachment proceedings charged Defendant with “Incitement of Insurrection,” which is not
charged in the Indictment. See Opp’n to Constitutional Motion at 60–62 (citing H.R. Res. 24,
117th Cong. (Jan. 11, 2021)). Although there are few decisions interpreting the analogous
federal statute that prohibits inciting “any . . . insurrection against the authority of the United
States or the laws thereof,” 18 U.S.C. § 2383, it is well-established that “incitement” typically
means “advocacy . . . directed to inciting or producing imminent lawless action” that is “likely to
incite or produce such action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). None of the
statutes under which Defendant is charged require the Government to prove incitement. See U.S.C. § 371; id. §§ 1512(c)(2), (k); id. § 241; accord Indictment ¶¶ 6, 126, 128, 130. The
impeachment proceedings and this prosecution therefore did not “twice put” Defendant “in
jeopardy of life or limb” for the “same offense.”
Defendant also contends his prosecution violates double jeopardy principles because the
distinct branches of government are part of one single sovereign. Constitutional Motion at 24.
But even assuming that is true, Defendant does not argue that impeachment carries a criminal
sanction or that the impeachment proceedings were based on the same offense as charged in the
Indictment. See id. at 23–24. Instead, he argues that different double jeopardy principles would
apply to prosecutions following impeachments, referencing only the Impeachment Judgment
Clause for support. Constitutional Reply at 18–20. But, as discussed below, the Impeachment
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Page 147 Judgment Clause provides only that prosecutions following convictions at impeachment are
constitutionally permissible; it does not create special double jeopardy principles. See U.S.
Const. art. I, § 3, cl. 7; infra Section V.B. Consequently, the Indictment does not violate the
Double Jeopardy Clause.
B. Impeachment Judgment Clause
The Impeachment Judgment Clause provides that “Judgment in Cases of Impeachment
shall not extend further than to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to
Law.” U.S. Const. art. I, § 3, cl. 7. As explained above, the first part of the Clause limits the
remedies available in impeachment, and the second part provides that even if a person is
convicted in impeachment proceedings, they may still be subject to criminal prosecution. See
supra at 8–10. As the Office of Legal Counsel noted, the “second part makes clear that the
restriction on sanctions in the first part was not a prohibition on further punishments; rather,
those punishments would still be available but simply not to the legislature.” OLC Double
Jeopardy Memo at *10.
Defendant contends the Impeachment Judgment Clause contains a negative implication:
if a person is not convicted in impeachment proceedings, they may not be prosecuted.
Constitutional Motion at 18–23; Constitutional Reply at 10–11. In statutory interpretation, the
expressio unius canon, which provides that “expressing one item of an associated group or series
excludes another left unmentioned,” does not apply unless “circumstances support a sensible
inference that the term left out must have been meant to be excluded.” NLRB v. SW General,
Inc., 580 U.S. 288, 302 (2017) (citations omitted). Because Defendant’s reading is not supported
by the structure of the Constitution, the historical context of the impeachment clauses, or prior
Page 40 of
Page 148 constitutional precedents, expressio unius does not apply. Accord Thompson v. Trump, F. Supp. 3d 46, 86–87 (D.D.C. 2022). The Impeachment Judgment Clause does not provide that
acquittal by the Senate during impeachment proceedings shields a President from criminal
prosecution after he leaves office.
1. Structure
Structural considerations support reading the Impeachment Judgment Clause as the plain
language suggests. First, as the Government notes, impeachment and prosecution serve distinct
goals within the separation of powers. See Opp’n to Constitutional Motion at 52–53.
Impeachment “is designed to enable Congress to protect the nation against officers who have
demonstrated that they are unfit to carry out important public responsibilities,” whereas
prosecution is designed to “penalize individuals for their criminal misdeeds.” OLC Double
Jeopardy Memo at *13. Impeachment proceedings provide far fewer procedural safeguards than
do prosecutions, see id., and accordingly, Congress may not dispense criminal penalties in
impeachment proceedings, supra Section V.A. Impeachment is not a substitute for prosecution.
Second, the Senate may acquit in impeachment proceedings even when it finds that an
official committed the acts alleged. For example, the Senate may acquit because it believes the
acts committed do not amount to “high Crimes and Misdemeanors,” U.S. Const. art. II, § 4;
because the Senate believes it lacks authority to try the official; or for partisan reasons. OLC
Double Jeopardy Memo at *14–15. Indeed, the Framers anticipated that impeachments might
spark partisan division. See The Federalist No. 65, at 330–31 (Alexander Hamilton); Letter from
Edmund Pendleton to James Madison, Oct. 8, 1787, 10 The Documentary History of the
Ratification of the Constitution 1773 (1976); 10 The Papers of James Madison 223 (Rutland et
al. ed., 1977); accord OLC Double Jeopardy Memo at *15. Acquittal on impeachment does not
establish the defendant’s innocence.
Page 41 of
Page 149 Defendant contends that impeachment serves to protect officials from political attacks by
their enemies, and allowing prosecution following impeachment acquittal would undermine that
protection. Constitutional Reply at 15–18. But politics are likely to play even larger a role in
impeachments than in prosecutions, given that impeachments are conducted by elected officials
politically accountable to their constituents, whereas prosecutions are conducted by appointed
officials, most of whom may not be removed without cause, see Free Enter. Fund v. Public Co.
Accounting Oversight Bd., 561 U.S. 477, 492–93 (2010) (explaining for-cause removal). And
former officials like Defendant, rather than current officials, are also less likely to be politically
attacked, because they no longer hold the power and authority of political office.
2. Historical context
Defendant claims that his interpretation of the Impeachment Judgment Clause reflects the
original public meaning of the impeachment clauses. Constitutional Motion at 20–21;
Constitutional Reply at 12–15. Considerable historical research undermines that contention. See
OLC Double Jeopardy Memo at *7–12 (“We are unaware of any evidence suggesting that the
framers and ratifiers of the Constitution chose the phrase ‘the party convicted’ with a negative
implication in mind.”); accord Thompson, 590 F. Supp. 3d at 87. Most notably, the Founders
repeatedly acknowledged that impeachment acquittals would not bar subsequent prosecutions.
For example, James Wilson, who participated in the Constitutional Convention, observed that
officials who “may not be convicted on impeachment . . . may be tried by their country.” 2 The
Documentary History of the Ratification of the Constitution 492. Edward Pendleton, who was
President of the Virginia Ratifying Convention, similarly observed that “an Acquital would not
bar,” a “resort to the Courts of Justice,” Letter from Edmund Pendleton to James Madison, Oct.
8, 1787, 10 The Documentary History of the Ratification of the Constitution 1773, a conclusion
that James Madison called “extremely well founded,” 10 The Papers of James Madison 223.
Page 42 of
Page 150 Justice Story too described that, following impeachment, “a second trial for the same offence
could be had, either after an acquittal, or a conviction in the court of impeachments.” 2 Story’s
Commentaries § 780.
Founding-era officials similarly acknowledged that an acquittal at impeachment
proceedings would not bar a subsequent prosecution. For example, during the first federal
impeachment trial, Representative Samuel Dana contrasted impeachment proceedings with
criminal trials, stating that impeachment had “no conne[ct]ion with punishment or crime, as,
whether a person tried under an impeachment be found guilty or acquitted, he is still liable to a
prosecution at common law.” 9 Annals of Congress 2475 (1798). None of the sources
Defendant cites refute that conclusion. See Constitutional Motion at 20–21.
3. Prior precedent
Defendant’s additional arguments invoking past constitutional precedents are similarly
unavailing. He first cites Justice Alito’s dissent in Vance. Constitutional Motion at 19–20. In
Vance, the Supreme Court held that a sitting President is not immune from state criminal
subpoenas, nor does a heightened standard apply to such requests. 140 S. Ct. at 2431. In so
holding, the majority opinion reiterated that “no citizen, not even the President, is categorically
above the common duty to produce evidence when called upon in a criminal proceeding.” Id.
Justice Alito’s dissent, moreover, noted that under the Impeachment Judgement Clause,
“criminal prosecution, like removal from the Presidency and disqualification from other offices,
is a consequence that can come about only after the Senate’s judgment, not during or prior to the
Senate trial.” Id. at 2444 (Alito, J., dissenting); see Constitutional Motion at 19. All Justice
Alito’s dissent observed is that, temporally, any prosecution must follow the judgment on
impeachment; no official shall be subject to simultaneous impeachment proceedings and
Page 43 of
Page 151 criminal prosecution. The dissent does not support the view that if impeachment proceedings
end in acquittal, subsequent prosecution violates double jeopardy.
Defendant also cites Fitzgerald for the proposition that the threat of impeachment alone
is the proper remedy against a President for any “official misfeasance.” Constitutional Motion
at 22. But as already explained, Fitzgerald is meaningfully distinguishable; it addressed
immunity from civil suit, and all nine Justices took care to emphasize that their reasoning did not
extend to the criminal context. See supra Section III.B.1.
In sum, neither the Double Jeopardy Clause nor the Impeachment Judgment Clause
prevent Defendant, who while President was acquitted in impeachment proceedings for
incitement, from being prosecuted after leaving office for different offenses.
VI.
DUE PROCESS
Finally, Defendant contends that the Indictment violates the Due Process Clause because
he lacked fair notice that his conduct was unlawful. Constitutional Motion at 25–31.
A. Due process principles
The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. To
comply with due process, a law must give “fair warning” of the prohibited conduct. United
States v. Lanier, 520 U.S. 259, 265 (1997) (citation omitted). A law fails to give fair warning if
the text of a statute is so unclear that it requires the Judicial and Executive Branches to “define
what conduct is sanctionable and what is not,” Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018);
see Lanier, 520 U.S. at 266 (citation omitted), or a judge construes the statute in a manner that is
“clearly at variance with the statutory language,” Bouie v. City of Columbia, 378 U.S. 347, (1964); see Rogers v. Tennessee, 532 U.S. 451, 457 (2001); see also Lanier, 520 U.S. at 266.
Page 44 of
Page 152 For instance, in 2015, the Supreme Court concluded that the residual clause of the Armed
Career Criminal Act violated due process because it was so vague—and difficult to administer—
that defendants lacked notice of how it would be applied in any given case. Johnson v. United
States, 576 U.S. 591, 597 (2015). The Court explained that the residual clause required judges to
imagine an “ordinary case” involving the crime with which the defendant was charged, and
compare the defendant’s actions to that “ordinary case.” Id. at 597, 599. It further emphasized
that its “repeated attempts and repeated failures to craft a principled and objective standard out of
the residual clause confirm[ed] its hopeless indeterminacy,” id. at 598, noting that the clause had
caused “numerous splits among the lower federal courts,” id. at 601 (citation omitted).
A statute does not fail to give fair warning just “because it ‘does not mean the same thing
to all people, all the time, everywhere.’” United States v. Bronstein, 849 F.3d 1101, 1107 (D.C.
Cir. 2017) (citation omitted). “Since words, by their nature, are imprecise instruments,” laws
“may have gray areas at the margins” without violating due process. United States v. Barnes,
295 F.3d 1354, 1366 (D.C. Cir. 2002). Indeed, statutes are rarely found unconstitutional because
their text fails to give fair warning. See, e.g., Bronstein, 849 F.3d at 1107 (statute upheld);
Barnes, 259 F.3d at 1366 (same); Woodhull Freedom Found. v. United States, 72 F.4th 1286,
1303–05 (D.C. Cir. 2023) (same); Kincaid v. Gov’t of D.C., 854 F.3d 721, 728–30 (D.C. Cir.
2017) (same); Agnew v. Gov’t of D.C., 920 F.3d 49, 55–61 (D.C. Cir. 2019) (same).
Applying a novel judicial construction of a statute may also fail to give fair warning if it
“unexpectedly broadens” the statute’s reach and applies that expanded reach “retroactively.”
Bouie, 378 U.S. at 353–57; see Rogers, 532 U.S. at 457; Reed v. Goertz, 143 S. Ct. 955, 960–(2023). In Bouie, for example, defendants were convicted of violating a state law prohibiting
“entry upon the lands of another . . . after notice from the other . . . prohibiting such entry” after
Page 45 of
Page 153 they remained on premises after being asked to leave, even though they did not re-enter the
premises. 378 U.S. at 355. The Supreme Court held that the state supreme court’s construction
of the statute failed to give the defendants fair notice because it was “clearly at variance with the
statutory language” and had “not the slightest support in prior [state] decisions.” Id. at 356.
B. The Indictment does not violate due process
Defendant had fair notice that his conduct might be unlawful. None of the criminal laws
he is accused of violating—18 U.S.C. § 371; id. § 1512(k); id. § 1512(c)(2); and id. § 241—
require the Executive or Judicial Branch to “guess” at the prohibited conduct, Lanier, 520 U.S. at
266. Nor does finding that the Indictment complies with due process require the court to create a
novel judicial construction of any statute.
Defendant notes that the “principle of fair notice has special force” in the First
Amendment Context. Constitutional Motion at 26–27. While that may be true, even “special
force” does not place Defendant’s alleged conduct “outside the plain language of the charged
statutes” as he alleges. See id. at 27. First, his argument does not contrast the allegations in the
Indictment with the plain language of the statutes, but instead attempts to recast the factual
allegations in the Indictment itself as no more than routine efforts to challenge an election. See
id. at 31 (claiming that “post-election challenges” like Defendant’s “had been performed in 1800,
1824, 1876, and 1960 . . . without any suggestion [it was] criminal”). But again, at this stage, the
court must take the allegations in the Indictment as true. Supra Section II, IV.B.3. The fact that
Defendant disputes the allegations in the Indictment do not render them unconstitutional.
Second, the meaning of statutory terms “need not be immediately obvious to an average person;
indeed, ‘even trained lawyers may find it necessary to consult legal dictionaries, treatises, and
judicial opinions before they may say with any certainty what some statutes may compel or
forbid.’” Agnew, 920 F.3d at 57 (citation omitted). And due process does not entitle Defendant
Page 46 of
Page 154 to advance warning that his precise conduct is unlawful, so long as the law plainly forbids it. See
Lanier, 520 U.S. at 271; cf. United States v. Int’l Mins. & Chem. Corp., 402 U.S. 558, (1971) (“ignorance of the law is no defense”).
Defendant also claims he lacked fair notice because there is a “long history” of
government officials “publicly claiming that election results were tainted by fraud” or
questioning election results, yet he is “the first person to face criminal charges for such core
political behavior.” Constitutional Motion at 25; see id. at 27–30. But there is also a long
history of prosecutions for interfering with the outcome of elections; that history provided
Defendant with notice that his conduct could be prosecuted. See Opp’n to Constitutional Motion
at 39–40 (citing six examples of 18 U.S.C. § 241 prosecutions). Indeed, the Supreme Court has
addressed more than one case in which officials were prosecuted for interfering with or
discarding election ballots. United States v. Mosley, 238 U.S. 383, 385 (1915); United States v.
Saylor, 322 U.S. 385, 386 (1944).
In addition, none of the contested elections Defendant invokes is analogous to this case.
See Opp’n to Constitutional Motion at 40–47 (detailing the history of each election). As noted
above, Defendant is not being prosecuted for publicly contesting the results of the election; he is
being prosecuted for knowingly making false statements in furtherance of a criminal conspiracy
and for obstruction of election certification proceedings. And in none of these earlier
circumstances was there any allegation that any official engaged in criminal conduct to obstruct
the electoral process. For instance, following the 2004 Presidential election, Representative
Stephanie Tubbs Jones raised an objection to Ohio’s electoral votes at the joint session; Senator
Boxer signed the objection. 151 Cong. Rec. 199 (Jan. 6, 2005). As Representative Jones
explained in a separate session, that objection was to allow “a necessary, timely, and appropriate
Page 47 of
Page 155 opportunity to review and remedy . . . the right to vote.” Id. Ohio’s electoral votes were then
counted for President Bush. Defendant points to no allegation that Representative Jones’
objection was in furtherance of a criminal conspiracy or designed to obstruct the electoral
process.
Moreover, even if there were an analogous circumstance in which an official had escaped
prosecution, the mere absence of prior prosecution in a similar circumstance would not
necessarily mean that Defendant’s conduct was lawful or that his prosecution lacks due process.
The “exclusive authority and absolute discretion to decide whether to prosecute a case”—within
bounds, supra at 19–20—is a cornerstone of the Executive Branch. Nixon, 418 U.S. at (citation omitted).
Finally, Defendant argues that, for the Indictment to comply with due process, the
prosecution bears the burden to “provide examples where similar conduct was found criminal.”
Constitutional Reply at 21. Under that theory, novel criminal acts would never be prosecuted.
The Constitution does not so constrain the Executive Branch.
VII.
CONCLUSION
For the foregoing reasons, the court will DENY Defendant’s Motion to Dismiss
Indictment Based on Presidential Immunity, ECF No. 74, and Motion to Dismiss the Indictment
Based on Constitutional Grounds, ECF No. 113. A corresponding Order will accompany this
Memorandum Opinion.
Date: December 1,
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 48 of
Page 156 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 MOTION TO DISMISS THE INDICTMENT BASED ON
CONSTITUTIONAL GROUNDS AND MEMORANDUM IN SUPPORT
Page 157 INTRODUCTION
The prosecution opens its indictment by stating that President Trump “had a right, like
every American, to speak publicly about the election,” including his deeply held view that there
had been fraud and other irregularities “during the election and that he had won.” Doc. 1 at ¶ (Indictment). These points are not in dispute. Nonetheless, in an astonishing display of
doublethink, the prosecution simultaneously claims that President Trump—simply by speaking his
mind and petitioning for a redress of grievances—also somehow conspired to “defraud the United
States,” “oppress rights,” and “obstruct an official proceeding.” Id. at ¶ 5–6, 125–130. Attempting
to explain this obvious contradiction, the prosecution argues that there was no “outcomedeterminative fraud in the election” (whatever that means), id. at ¶ 2, and that President Trump
supposedly knew this because some government officials “notified” him “that his claims were
untrue,” ¶ 11.
If there is any constant in our democratic system of governance, it is that the marketplace
of ideas—not the mandates of government functionaries or partisan prosecutors—determines the
scope of public debate. Countless millions believe, as President Trump consistently has and
currently does, that fraud and irregularities pervaded the 2020 Presidential Election. As the
indictment itself alleges, President Trump gave voice to these concerns and demanded that
politicians in a position to restore integrity to our elections not just talk about the problem, but
investigate and resolve it. See id. at ¶ 10(a) (state legislators and election officials) act); ¶ 10(b)
(Vice President and other government officials); ¶ 10(c) (state officials); ¶ 10(d) (vice president); ¶
10(e) (members of Congress).
The First Amendment embraces and encourages exactly this kind of behavior, and
therefore states in the clearest of terms that “Congress shall make no law . . . abridging the freedom
Page 158 of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances.” U.S. CONST. amend. I. The indictment, taken as true, violates this core
principle as to each count. Accordingly, the Court should dismiss the indictment in its entirety.
Additionally, as the United States Senate has previously tried and acquitted President
Trump for charges arising from the same course of conduct alleged in the indictment, the
impeachment and double jeopardy clauses both bar retrial before this Court and require dismissal.
Finally, because of our country’s longstanding tradition of forceful political advocacy
regarding perceived fraud and irregularities in numerous Presidential elections, President Trump
lacked fair notice that his advocacy in this instance could be criminalized. Thus, the Court should
dismiss the indictment under the Due Process clause as well.
ARGUMENT
“In ruling on a motion to dismiss for failure to state an offense, a district court is” typically
“limited to reviewing the face of the indictment and, more specifically, the language used to charge
the crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009). “When considering a
motion to dismiss, the court must review the face of the indictment,” and “the indictment must be
viewed as a whole and the allegations must be accepted as true at this stage of the proceedings.”
United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022).
President Trump fully denies the allegations in the indictment which are referenced in this
motion and memorandum. Rather, this memorandum sets forth the facts alleged in the indictment
so that their legal sufficiency may be assessed for a motion to dismiss. Id.
Page 159 I.
The Indictment Should Be Dismissed Because It Seeks to Criminalize Core Political
Speech and Advocacy Protected by the First Amendment.
First and foremost, the indictment must be dismissed because it seeks to criminalize core
political speech and advocacy that lies at the heart of the First Amendment.A.
The Government May Not Prohibit Core Political Speech on Matters of Public
Concern, Regardless of Its Supposed Truth or Falsity.
In United States v. Alvarez, the Supreme Court reaffirmed the broad scope of the First
Amendment, holding that it protects even the verifiably false claim that the speaker had been
awarded the Congressional Medal of Honor. 567 U.S. 709, 729 (2012) (plurality opinion of
Kennedy, J.); id. at 739 (Breyer, J., concurring in the judgment).
Alvarez produced multiple opinions, see id., but on one key point, all nine Justices were
unanimous: Under the First Amendment, the Government may not prohibit or criminalize speech
on disputed social, political, and historical issues simply because the Government determines that
some views are “true” and others are “false.” See id. “Our constitutional tradition stands against
the idea that we need Oceania’s Ministry of Truth.” Id. at 723 (citing GEORGE ORWELL, NINETEEN
EIGHTY–FOUR (1949) (Centennial ed. 2003)).
The four-Justice plurality opinion of Justice Kennedy was emphatic on this point, rejecting
the notion that the “government [may] decree this speech [about receiving medals] to be a criminal
offense, whether shouted from the rooftops or made in a barely audible whisper,” as such an
approach “would endorse government authority to compile a list of subjects about which false
As explained in President Trump’s Motion to Dismiss Based on Presidential Immunity, all acts
charged in the indictment were performed within the “outer perimeter” of his official duties as
President. Doc. 74, at 21-45. As explained in that Motion, and conceded in the Government’s
Blassingame amicus brief, the fact that President Trump’s alleged actions were conducted within
his official duties is fully consistent with those actions also involving the exercise of his First
Amendment rights. See, e.g., id. at 26-27 (“[I]t is commonplace for a President’s speech to have
dual roles—both an official and personal character.”).
Page 160 statements are punishable. That governmental power has no clear limiting principle.” Id. at 723.
Thus, disavowing “Oceania’s Ministry of Truth,” id., Justice Kennedy rejected any rule that would
“give government a broad censorial power unprecedent in this Court’s cases or in our
constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the
First Amendment cannot permit if free speech, thought, and discourse are likely to remain a
foundation of our freedom.” Id. Instead,
[t]he remedy for speech that is false is speech that is true. This is the ordinary course
in a free society. The response to the unreasoned is the rational; to the uninformed,
the enlightened; to the straightout lie, the simple truth.… The theory of our
Constitution is “that the best test of truth is the power of the thought to get itself
accepted in the competition of the market.”… Freedom of speech and thought flows
not from the beneficence of the state but from the inalienable rights of the person.
And suppression of speech by the government can make exposure of falsity more
difficult, not less so…. These ends are not well served when the government seeks
to orchestrate public discussion through content-based mandates.
Id. at 727-28 (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)).
“Only a weak society needs government protection or intervention before it pursues its resolve to
preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.” Id. at 729.
Justice Breyer’s two-Justice concurrence in Alvarez likewise endorsed this same point,
quoting Justice Alito for the proposition that “there are broad areas in which any attempt by the
state to penalize purportedly false speech would present a grave and unacceptable danger of
suppressing truthful speech,” which include “[l]aws restricting false statements about philosophy,
religion, history, the social sciences, the arts, and the like.” See id. at 731-32 (Breyer, J., concurring
in the judgment). These topics—which are often the subject of vigorous public debate—rarely
have clear or verifiable answers (hence, the controversy), and therefore citizens must be given
“breathing room” to speak their minds without fear of, as here, being criminally prosecuted by
government officials that do not like what they have to say. See id. at 733.
Page 161 Indeed, Justice Breyer concluded that “the threat of criminal prosecution for making a false
statement can inhibit the speaker from making true statements, thereby ‘chilling’ a kind of speech
that lies at the First Amendment's heart.” Id. at 733. Justice Breyer further emphasized that
criminalizing supposedly “false” statements on such not “easily verifiable,” politically
controversial topics “provides a weapon to a government broadly empowered to prosecute falsity
without more. And those who are unpopular may fear that the government will use that weapon
selectively….” Id. at 734; see also id. at 736 (emphasizing that “in political contexts, … the risk
of censorious selectivity by prosecutors is … high”); id. at 738 (“In the political arena … criminal
prosecution is particularly dangerous … and consequently can more easily result in censorship of
speakers and their ideas.”).Justice Alito’s three-Justice dissent in Alvarez—the opinion least protective of speech in
that case—endorsed the same conclusion. As noted above, Justice Alito’s dissent recognized that
there are broad areas in which any attempt by the state to penalize purportedly false speech
would present a grave and unacceptable danger of suppressing truthful speech. Laws
restricting false statements about philosophy, religion, history, the social sciences, the arts,
and other matters of public concern would present such a threat. The point is not that there
is no such thing as truth or falsity in these areas or that the truth is always impossible to
ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.
United States v. Alvarez, 567 U.S. 709, 751–52 (2012) (Alito, J., dissenting) (emphasis added).
“Even where there is a wide scholarly consensus concerning a particular matter, the truth is served
by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom
sometimes turns out to be mistaken.” Id. at 752. “And in these contexts, ‘even a false statement
Although Justice Breyer suggested false statements concerning “easily verifiable facts” might be
afforded less First Amendment protection, as discussed infra, questions of election integrity are
by no means “easily verifiable,” and are certainly unlike the statements in Alvarez regarding receipt
of the Medal of Honor, which Justice Breyer nonetheless concluded were protected by the First
Amendment.
Page 162 may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer
perception and livelier impression of truth, produced by its collision with error.’” Id. (quoting New
York Times v. Sullivan, 376 U.S. at 279 n.19 (quoting JOHN STUART MILL, ON LIBERTY 15 (R.
McCallum ed. 1947))).
In addition, “[a]llowing the state to proscribe false statements in these areas also opens the
door for the state to use its power for political ends,” id.—a concern that is maximal in this case,
where a sitting President’s Administration is prosecuting his chief political opponent for
supposedly making “false” claims challenging the validity of the sitting President’s election. “If
some false statements about historical events may be banned, how certain must it be that a
statement is false before the ban may be upheld? And who should make that calculation?” Id.
“While our cases prohibiting viewpoint discrimination would fetter the state’s power to some
degree, the potential for abuse of power in these areas is simply too great.” Id. (emphasis added).
Thus, Alvarez reflects the Supreme Court’s unanimous consensus that claims about widely
disputed social, political, and historical questions—i.e., “matters of public concern,” id. at 752—
are protected by the First Amendment, regardless of the Government’s view on supposed “truth”
or “falsity.” In fact, as Justice Alito’s discussion demonstrates, such claims are protected by the
First Amendment especially when the Government deems them “false.” See id. Thus, claims about
the integrity of the 2020 Presidential election—including claims that the election was “rigged,”
“stolen,” and/or tainted by outcome-determinative fraud—are fully protected by the First
Amendment, regardless of the Government’s view of their truth or falsity. Indeed, in such areas,
“it is perilous to permit the state to be the arbiter of truth.” Id. at 752 (Alito, J., dissenting).
This conclusion that the First Amendment fully protects opinions and claims on widely
disputed political and historical issues—such as the integrity of the 2020 Presidential election—
Page 163 draws further support from the most basic principles of the Supreme Court’s First Amendment
jurisprudence. Such claims constitute (1) core political speech, on (2) matters of enormous public
concern, where suppressing the speech constitutes (3) forbidden viewpoint discrimination.
Speech on matters of public concern. “Speech on matters of public concern is at the heart
of the First Amendment’s protection. That is because speech concerning public affairs is more than
self-expression; it is the essence of self-government. Accordingly, speech on public issues
occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special
protection.” Snyder v. Phelps, 562 U.S. 443, 451–52 (2011) (cleaned up; citations omitted) (citing
numerous cases). “Speech deals with matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to the community, or when it is a subject
of legitimate news interest; that is, a subject of general interest and of value and concern to the
public.” Id. at 452-53. And Justice Alito’s dissent in Alvarez explicitly stated that the areas where
the First Amendment does not permit the criminalization of supposedly “false” statements can be
summarized as those involving “matters of public concern.” 567 U.S. at 751–52 (Alito, J.,
dissenting). Speech disputing the outcome of the 2020 election unquestionably constitutes speech
on “matters of public concern.” See id.
Core political speech. Indeed, such speech constitutes core political speech, and First
Amendment protection is “at its zenith” when the government attempts to restrict “core political
speech.” Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 186–87 (1999); see also Meyer v.
Grant, 486 U.S. 414, 425 (1988) (speech that “at the core of our electoral process and of the First
Amendment freedoms—an area … where protection of robust discussion is at its zenith”) (citations
and quotations omitted). Such “core political speech” encompasses any “advocacy of a politically
controversial viewpoint.” McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 347 (1995). “No form
Page 164 of speech is entitled to greater constitutional protection than” core political speech. Id. This is
especially true of speech relating to elections, since the First Amendment’s “constitutional
guarantee has its fullest and most urgent application precisely to the conduct of campaigns for
political office.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014) (quoting Monitor
Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
Viewpoint discrimination. Further, attempts to prohibit or criminalize claims on political
disputes—such as the integrity and outcome of the 2020 Presidential election—inevitably target
speech on the basis of viewpoint, which is the least tolerable of First Amendment violations. “It is
axiomatic that the government may not regulate speech based on its substantive content or the
message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, (1995). “When the government targets not subject matter, but particular views taken by speakers
on a subject, the violation of the First Amendment is all the more blatant.” Id. at 829. “Viewpoint
discrimination is thus an egregious form of content discrimination. The government must abstain
from regulating speech when the specific motivating ideology or the opinion or perspective of the
speaker is the rationale for the restriction.” Id.
The fact that the indictment alleges that the speech at issue was supposedly, according to
the prosecution, “false” makes no difference. Under the First Amendment, each individual
American participating in a free marketplace of ideas—not the federal Government—decides for
him or herself what is true and false on great disputed social and political questions. As noted
above, “[o]ur constitutional tradition stands against the idea that we need Oceania's Ministry of
Truth.” Alvarez, 567 U.S. at 723. “Permitting the government to decree this [false] speech to be a
criminal offense … would endorse government authority to compile a list of subjects about which
false statements are punishable. That governmental power has no clear limiting principle.” Id.
Page 165 Thus, “falsity alone may not suffice to bring the speech outside the First Amendment.” Id. at 719.
“Absent from those few categories where the law allows content-based regulation of speech is any
general exception to the First Amendment for false statements. This comports with the common
understanding that some false statements are inevitable if there is to be an open and vigorous
expression of views in public and private conversation, expression the First Amendment seeks to
guarantee.” Id. at 718. “The erroneous statement is inevitable in free debate.” Id. (quoting New
York Times v. Sullivan, 376 U.S. 254, 271 (1964)).
***
The indictment therefore attempts to criminalize core political speech and political
advocacy, which is categorically impermissible under the First Amendment. As the Supreme Court
held in Texas v. Johnson, “[i]f there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989) (citing 14 cases
for this proposition). “[I]t is a central tenet of the First Amendment that the government must
remain neutral in the marketplace of ideas.” Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 56 (1988)
(quoting FCC v. Pacifica Foundation, 438 U.S. 726, 745-46 (1978)). “[A]bove all else, the First
Amendment means that government has no power to restrict expression because of its message,
its ideas, its subject matter, or its content.” Police Dep’t of City of Chicago v. Mosley, 408 U.S.
92, 95 (1972).
The indictment here does not merely criminalize conduct with an incidental impact on
protected speech; instead, it directly targets core protected speech and activity. For this reason, it
is categorically invalid under the First Amendment. “Clearly, government has no power to restrict
Page 166 such activity because of its message.” Grayned v. City of Rockford, 408 U.S. 104, 115 (1972). That
is precisely what the indictment attempts to do here.
For similar reasons, the indictment is invalid under any level of scrutiny. As noted above, the
indictment imposes viewpoint-based restrictions on core political speech on matters of the highest
public concern with extremely severe penalties, and thus if any scrutiny applies, it is the strictest
form of scrutiny. Yet regardless, the prosecution cannot show any interest (let alone a compelling
or substantial one) in punishing such First Amendment-protected activity. The prosecution has no
valid interest in silencing disfavored viewpoints or preventing people from advocating such
disfavored viewpoints to government officials. See, e.g., United States v. Eichman, 731 F. Supp.
1123, 1131 (D.D.C.), aff’d, 496 U.S. 310 (1990) (“However compelling the government may see
its interests, they cannot justify restrictions on speech which shake the very cornerstone of the First
Amendment.”). Furthermore, no amount of tailoring can save such a restriction, because its entire
impact is focused on punishing the exercise of core political speech. See Doc. 1; see also, e.g.,
United States v. Popa, 187 F.3d 672, 677 (D.C. Cir. 1999) (“Punishment of those who use the
telephone to communicate a political message is obviously not ‘essential to the furtherance of that
[government] interest.’”). The indictment is precisely tailored to violate free-speech rights, not
narrowly tailored to avoid violating them. See id. This is the antithesis of narrow tailoring.
Finally, if the indictment validly applies the language of the statute, that renders the statute both
unconstitutional as applied and unconstitutional on its face, under the First Amendment
overbreadth doctrine. Under the prosecution’s interpretation, the statute sweeps in the
criminalization of large amounts of “pure speech,” and thus it suffers from “overbreadth” that is
“not only … real, but substantial as well, judged in relation to the statute’s plainly legitimate
sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
Page 167 B.
The First Amendment Protection for Opinions on Politically Charged
Disputes Extends to Statements Advocating the Government to Act.
Because the First Amendment confers absolute protection on public statements about hotly
disputed social, political, and historical topics and other matters of public concern, including those
which are supposedly “false,” it confers the same protection on the same statements made in
advocating for government officials to act on one’s views. The First Amendment protects the right
“to petition the Government for a redress of grievances” in the same clause as “the freedom of
speech.” U.S. CONST. amend. I. When it comes to what speech is protected, the right to petition is
coextensive with the right to speak—a claim protected under the Amendment’s right to “freedom
of speech” is equally protected when the same claim is made while “petition[ing] the
Government.” Id. As the Supreme Court stated, “[t]he right to petition is cut from the same cloth
as the other guarantees of that Amendment, and is an assurance of a particular freedom of
expression.” McDonald v. Smith, 472 U.S. 479, 482 (1985).
For this reason, in McDonald, the Supreme Court consulted the right to freedom of speech
to determine what statements are protected when exercising the right to petition the government.
McDonald concerned a libel lawsuit brought against a man who sent letters to President Reagan
making allegedly libelous claims about a potential political appointee. 472 U.S. at 480-81. The
libel defendant claimed that he had absolute immunity from libel suit because the allegedly
libelous statements were made in the course of petitioning the Government. Id. at 481-82. The
Supreme Court rejected this claim, holding instead that the scope of First Amendment protection
for claims made while petitioning government officials is coextensive with the scope of First
Amendment protection for public statements under the Free Speech Clause. Id. at 484-85. Because
libel falls within a well-established First Amendment exception, libel made in statements to
government officials is likewise unprotected under the Petition Clause of the First Amendment.
Page 168 Id. at 485. In so holding, the Supreme Court made clear that the Free Speech Clause and the
Petition Clause are on identical footing, establishing the same levels of protection for speech:
To accept petitioner’s claim of absolute immunity would elevate the Petition Clause to
special First Amendment status. The Petition Clause, however, was inspired by the same
ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble.
These First Amendment rights are inseparable, and there is no sound basis for granting
greater constitutional protection to statements made in a petition to the President than
other First Amendment expressions.
Id. at 485 (citations omitted) (emphasis added). The same logic applies here. Just as there is “no
sound basis for granting greater protection to statements made in a petition … than other First
Amendment expressions,” id., so also there is no sound basis for granting lesser constitutional
protection to the same statements. After all, the Petition Clause reflects “the same ideals of liberty
and democracy that gave us the freedoms to speak, publish, and assemble.” Id. Thus, speech that
is protected by the Free Speech Clause when made in a public forum retains its full protection
when it is made to Government officials in the course of petitioning them to action. See id.
This conclusion draws further support from McDonnell v. United States, 579 U.S. (2016). In McDonnell, the Government prosecuted the Governor of Virginia using an
interpretation of the phrase “official act” in 18 U.S.C. § 201 that would have criminalized a broad
range of ordinary political lobbying of public officials: “Section 201 prohibits quid pro quo
corruption—the exchange of a thing of value for an ‘official act.’ In the Government’s view, nearly
anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and
nearly anything a public official does—from arranging a meeting to inviting a guest to an event—
counts as a quo.” Id. at 575. The Supreme Court unanimously held that “[i]n addition to being
inconsistent with both text and precedent, the Government’s expansive interpretation of ‘official
act’ would raise significant constitutional concerns,” id. at 574, precisely because it threatened to
Page 169 criminalize a broad range of ordinary political activity done in furtherance of petitioning the
Government under the First Amendment:
[C]onscientious public officials arrange meetings for constituents, contact other officials
on their behalf, and include them in events all the time. The basic compact underlying
representative government assumes that public officials will hear from their constituents
and act appropriately on their concerns…. The Government’s position could cast a pall of
potential prosecution over these relationships….. Officials might wonder whether they
could respond to even the most commonplace requests for assistance, and citizens with
legitimate concerns might shrink from participating in democratic discourse.
Id. at 575 (second emphasis added). So also here, permitting the prosecution to criminalize First
Amendment-protected statements simply because they were made to government officials would
violate “[t]he basic compact of representative government” and cause “citizens with legitimate
concerns” to “shrink from participating in democratic discourse.” Id. Consider any number of
disfavored claims on a host of controversial topics, all deemed to be demonstrably “false” and
“disinformation” by the Government at various times—such as claiming that masks do not stop
the transmission of COVID-19, that vaccines do not stop the transmission of COVID-19, that
COVID-19 originated from a lab in Wuhan, China, and that the 2020 Presidential election was
stolen. Can the Government prosecute a citizen for attempting to “defraud the United States” by
making supposedly “false” statements to government officials for (1) opposing mask mandates by
telling legislators that they don’t stop transmission, (2) opposing vaccine mandates by telling
legislators that they don’t stop transmission, and/or (3) urging the investigation of China by telling
government officials that COVID-19 leaked from a lab? Under the First Amendment, the answer
is “no”—and that absolutely applies to claims that the 2020 Presidential election was stolen as
well.
Page 170 C.
The First Amendment Does Not Permit the Government to Prosecute a Citizen
for Claiming That the 2020 Presidential Election Was Stolen.
Thus, under the First Amendment, the prosecution cannot criminalize claims that the Presidential election was stolen; and it cannot, by prosecution, seek to impose its view on a
disputed political question like the integrity of the 2020 Presidential election. “If there is any fixed
star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opinion.” W. Virginia State Bd.
of Educ. v. Barnette, 319 U.S. 624, 642 (1943). “At the heart of the First Amendment lies the
principle that each person should decide for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence.” Turner Broadcasting System, Inc. v. FCC, 512 U.S.
622, 641 (1994). Neither the federal Executive Branch nor the Judicial Branch, both of which are
bound by the First Amendment, may dictate that such claims are criminally “false.”
Claims about the integrity of the 2020 Presidential election—including claims that the
election was “rigged” and/or “stolen,” or that fraud and irregularities tainted the outcome in certain
States or across the Nation—implicate all the fundamental First Amendment principles discussed
above. They constitute (1) core political speech (2) expressing a specific disfavored viewpoint (3)
on matters of enormous public concern (4) that relate to a widely disputed historical, social, and
political question (5) that is not readily verifiable or falsifiable. Thus, they lie at the heartland of
the First Amendment’s protection, and the federal government may not dictate whether such
claims are true or false—nor prosecute the purveyors of the allegedly “false” views.
This is especially true because claims that the 2020 Presidential election was “rigged” or
tainted by fraud and irregularity—unlike the libel claims at issue in McDonald, see supra—do not
involve “easily verifiable facts.” Alvarez, 567 U.S. at 732 (Breyer, J., concurring in the judgment).
Such claims require the assessment of mountains of information from which each person will draw
Page 171 competing inferences based on facts as well as their personal, deep-seated political views and
presuppositions. They are not readily verifiable or falsifiable, they relate to politically charged
issues, and people’s assessment of them is deeply linked to their political predispositions and their
trust in institutions, including governmental institutions. This is why Americans’ opinions on these
issues are profoundly divided, very much to this day. The First Amendment does not permit the
prosecution to dictate what is “true” and what is “false” on such broad, vigorously disputed,
politically charged questions—especially not in the context of a criminal prosecution that
effectively seeks to criminalize a political viewpoint shared by over 100 million Americans.Many millions of reasonable people believe that the 2020 Presidential election was unfairly
rigged against President Trump, and that fraud and other irregularities tainted the election results.
There is abundant public evidence providing a reasonable basis for these opinions. What is critical
is that how one interprets this evidence depends on one’s deep-seated political views, including
one’s trust in government institutions and government officials, among others. Different people
will draw different inferences from such public evidence based on their deep-seated political
views—and that is exactly what the First Amendment permits—even celebrates.
Almost 40 percent of Americans, including almost 70 percent of Republicans, believe that the
2020 Presidential election was tainted by fraud or irregularity—a number that is increasing and
has increased since 2020. See, e.g., Jennifer Agiesta, et al., CNN Poll: Percentage of Republicans
Who Think Biden’s 2020 Win Was Illegitimate Ticks Back Up Near 70%, CNN (Aug. 3, 2023), at
https://www.cnn.com/2023/08/03/politics/cnn-poll-republicans-think-2020-electionillegitimate/index.html. “The share of Republicans and Republican-leaning independents who
believe that President Joe Biden’s 2020 election win was not legitimate has ticked back up,
according to a new CNN poll fielded throughout July. … 69% of Republicans and Republicanleaners say Biden’s win was not legitimate, up from 63% earlier this year and through last fall….
Overall, 61% of Americans say Biden did legitimately win enough votes to win the presidency,
and 38% believe that he did not. Among registered voters who say they cast a ballot for Trump in
2020, 75% say they have doubts about Biden’s legitimacy.” Id.
Compare, e.g., Mollie Hemingway, Rigged: How the Media, Big Tech, and the Democrats Seized
Our Elections (Regnery 2021) (423-page book discussing changes to election procedures, flooding
the system with absentee ballots, use of mail-in ballots without signature verification or other
Page 172 This unconstitutional dynamic appears on the face of the indictment itself. The indictment
repeatedly alleges that President Trump made “knowingly false claims of election fraud.” Doc. 1,
¶ 7 (emphasis added). But in every case, the indictment’s basis for the allegation that President
Trump’s claims were “knowingly” false is that a member of the political establishment assured
President Trump that they were false. See, e.g., id. ¶¶ 11(a)-(h) (alleging that a series of
government officials assured President Trump that his concerns about the election’s integrity were
unwarranted). Under the First Amendment, President Trump and his supporters are entitled to
mistrust the word of such establishment-based government officials and draw their own inferences
from the facts. And neither the federal Executive Branch (through the prosecution) nor the Judicial
Branch (through this Court) may dictate what President Trump and others are required to believe,
or say, about this hotly disputed political question.
The prosecution, of course, may come to its own conclusions about such matters. It may
hold hearings and conduct investigations to try to establish its own view and convince others of
them. It may insist that the opinions of others—including President Trump—are wrong, baseless,
stupid—even false and malicious. But it may not require Americans to subscribe to its views or
punish them for expressing and advocating for different views. To do so violates the First
Amendment. Under the First Amendment, the question of whether the 2020 Presidential election
safeguards against fraud, widespread ballot harvesting, censorship by social-media platforms,
private funding of election administration concentrated in Democratic precincts, exclusion of
observers from vote-counting processes, and other developments to argue that the 2020 election
was “rigged” against President Trump), with Molly Ball, The Secret History of the Shadow
Campaign That Saved the 2020 Election, TIME (Feb. 4, 2021), at https://time.com/5936036/secret2020-election-campaign/ (feature-length article discussing many of the same developments as
Hemingway’s book; describing “an extraordinary shadow effort” to influence the election against
President Trump, made up of “a well-funded cabal of powerful people … working together behind
the scenes to influence perceptions, change rules and laws, steer media coverage and control the
flow of information”; and concluding that this “shadow effort” and “cabal” provide evidence that
the 2020 election was one of the fairest in modern history).
Page 173 was stolen from President Trump must be decided in “the free marketplace of ideas,” not in
criminal prosecutions. Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, (2020) (Breyer, J., concurring in the judgment with respect to severability and dissenting in part).
For the foregoing reasons, the indictment violates the First Amendment in toto. It should
be dismissed with prejudice.
II.
President Trump’s Acquittal by the U.S. Senate Bars Criminal Prosecution for
Offenses Arising from the Same Course of Conduct.
The indictment must be dismissed because President Trump was impeached, tried by the
Senate, and acquitted on articles of impeachment that arise from the same course of conduct as the
criminal indictment. Under our system of separated powers, the Executive Branch lacks authority
to second-guess the decision of the Legislative Branch on an issue that lies within the Legislative
Branch’s exclusive purview. The Constitution’s plain text, structural principles of separation of
powers, our history and tradition, and principles of Double Jeopardy bar the Executive Branch
from seeking to re-charge and re-try a President who has already been impeached and acquitted in
a trial before the U.S. Senate.
A.
The text of the Constitution bars the prosecution of a President who has been
tried and acquitted by the Senate.
The text of the Constitution straightforwardly provides that only a “Party convicted” by the
Senate may be charged by “Indictment, Trial, Judgment and Punishment”—not a party acquitted.
As the Senate acquitted President Trump, the prosecution may not re-try him in this Court.
To be removed from office, the President must be convicted by trial in the Senate, which
has exclusive authority under the Constitution for such trials: “The Senate shall have the sole
Power to try all Impeachments. … And no Person shall be convicted without the Concurrence of
two thirds of the Members present.” U.S. CONST. art. I, § 3, cl. 6. “Judgment in Cases of
Page 174 Impeachment shall not extend further than to removal from Office, and disqualification to hold
and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted
shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according
to Law.” U.S. CONST. art. I, § 3, cl. 7 (emphasis added).
Because the Constitution specifies that only “the Party convicted” by trial in the Senate
may be “liable and subject to Indictment, Trial, Judgment and Punishment,” id., it presupposes
that a President who is not convicted may not be subject to criminal prosecution. Id. As Justice
Alito notes, “[t]he plain implication” of the phrase “the Party convicted” in this Clause “is that
criminal prosecution, like removal from the Presidency and disqualification from other offices, is
a consequence that can come about only after the Senate’s judgment, not during or prior to the
Senate trial.” Trump v. Vance, 140 S. Ct. 2412, 2444 (2020) (Alito, J., dissenting) (emphasis
added). “This was how Hamilton explained the impeachment provisions in the Federalist Papers.
He wrote that a President may ‘be impeached, tried, and, upon conviction ... would afterwards be
liable to prosecution and punishment in the ordinary course of law.’” Id. (quoting THE FEDERALIST
No. 69, p. 416 (C. Rossiter ed. 1961) (emphasis added)); see also THE FEDERALIST No. 77, at (A. Hamilton) (a President is “at all times liable to impeachment, trial, [and] dismission from
office,” but any other punishment must come only “by subsequent prosecution in the common
course of law”) (emphasis added).
Justice Alito’s interpretation of the Clause is well-founded. The longstanding canon of
interpretation expressio unius est exclusio alterius (or the “negative-inference canon”) reflects “the
principle that specification of the one implies exclusion of the other validly describes how people
express themselves and understand verbal expression.” SCALIA & GARNER, READING LAW: THE
INTERPRETATION
OF
LEGAL TEXTS, § 10, p. 107 (2012). “When a car dealer promises a low
Page 175 financing rate to ‘purchasers with good credit,’ it is entirely clear that the rate is not available to
purchasers with spotty credit.” Id. So also here, when the Constitution provides that “the Party
convicted” in the Senate may be subject to criminal prosecution, “it is entirely clear that” the Party
acquitted in a Senate trial “is not” subject to criminal prosecution for official acts. Id. This is true
because the phrase “the Party convicted” “can reasonably be thought to be an expression of all that
shares in the grant or prohibition involved.” Id. Because there are only two possible outcomes from
a Senate trial—conviction or acquittal—specifying the implications of only one outcome clearly
means that those implications do not apply to the other outcome. See id.
This interpretation reflects the original public meaning of the impeachment clauses. “James
Wilson—who had participated in the Philadelphia Convention at which the document was
drafted—explained that, although the President … is amenable to [the laws] in his private character
as a citizen, and in his public character by impeachment.’” Clinton v. Jones, 520 U.S. 681, (1997) (emphasis added) (quoting 2 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 480 (2d
ed. 1863) (cleaned up). “With respect to acts taken in his ‘public character’—that is, official acts—
the President may be disciplined principally by impeachment….” Id.
In addition, in Federalist No. 43, James Madison indicated that concerns about politically
motivated prosecutions led to the adoption of the definition of “treason” in Article III, Section 3,
Clause 1 of the Constitution:
As treason may be committed against the United States, the authority of the United States
ought to be enabled to punish it; but as new fangled and artificial treasons, have been the
great engines, by which violent factions, the natural offspring of free governments, have
usually wreaked their alternate malignity on each other, the [Constitutional] convention
have with great judgment opposed a barrier to this peculiar danger, by inserting a
constitutional definition of the crime, fixing the proof necessary for conviction of it, and
restraining the congress, even in punishing it, from extending the consequences of guilt
beyond the person of its author.
Page 176 THE FEDERALIST No. 47 (Madison) (emphasis added). In Federalist No. 65, Alexander Hamilton
explained that the Constitution entrusted impeachment trials to the Senate because the risk of
politically motivated criminal trials, which would inevitably be tainted by factionalism and
partisanship, was too great in the courts, including even the Supreme Court:
A well constituted court for the trial of impeachments, is an object not more to be desired
than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction
are those offenses which proceed from the misconduct of public men, or in other words
from the abuse or violation of some public trust. They are of a nature which may with
peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself. The prosecution of them, for this reason, will seldom fail
to agitate the passions of the whole community, and to divide it into parties, more or less
friendly or inimical, to the accused. In many cases, it will connect itself with the preexisting factions, and will inlist all their animosities, partialities, influence and interest on
one side, or on the other; and in such cases there will always be the greatest danger, that
the decision will be regulated more by the compar[a]tive strength of parties than by the real
demonstrations of innocence or guilt.
THE FEDERALIST No. 65 (Hamilton) (emphasis added). Hamilton went on to argue that even the
Supreme Court should not handle prosecutions of major political figures: “The awful discretion,
which a court of impeachments must necessarily have, to doom to honor or to infamy the most
confidential and the most distinguished characters of the community, forbids the commitment of
the trust to a small number of persons. These considerations seem alone sufficient to authorise a
conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a
court of impeachments.” Id. (emphasis added).
In addition, treating impeachment as the exclusive remedy for alleged crimes committed
in office is consistent with the Supreme Court’s immunity decisions as to other sensitive officials,
such as federal judges. The Supreme Court has held that judges are absolutely immune from civil
liability and criminal prosecution for their official acts, and that the sole remedy is impeachment:
“But for malice or corruption in their action whilst exercising their judicial functions within the
general scope of their jurisdiction, the judges of these courts can only be reached by public
Page 177 prosecution in the form of impeachment, or in such other form as may be specially prescribed.”
Bradley v. Fisher, 80 U.S. 335, 354 (1871) (emphasis added).
In Nixon v. Fitzgerald, the Supreme Court reinforced this conclusion by emphasizing that
the proper remedy against a President for official misfeasance is “the threat of impeachment,” not
criminal prosecution:
A rule of absolute immunity for the President will not leave the Nation without sufficient
protection against misconduct on the part of the Chief Executive. There remains the
constitutional remedy of impeachment. In addition, there are formal and informal checks
on Presidential action…. The President is subjected to constant scrutiny by the press.
Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as
well as to make credible the threat of impeachment. Other incentives to avoid misconduct
may include a desire to earn reelection, the need to maintain prestige as an element of
Presidential influence, and a President’s traditional concern for his historical stature.
Nixon v. Fitzgerald, 457 U.S. 731, 757 (1982). See also, e.g., Bradley v. Fisher, 80 U.S. 335, (1871) (“But for malice or corruption in their action whilst exercising their judicial functions
within the general scope of their jurisdiction, the judges of these courts [i.e., Article III courts] can
only be reached by public prosecution in the form of impeachment, or in such other form as may
be specially prescribed.”).
Here, President Trump is not a “Party convicted” in an impeachment trial by the Senate.
U.S. CONST. art. I, § 3, cl. 7. In January 2021, he was impeached by the House on articles arising
from the same course of conduct at issue in the indictment. H. RES. 24 (117th Cong. 1st Sess.), at
https://www.congress.gov/bill/117th-congress/house-resolution/24/text. Among other things, the
articles of impeachment charged that President Trump “repeatedly issued false statements
asserting that the Presidential election results were the product of widespread fraud and should not
be accepted by the American people or certified by State or Federal officials;” made “false claims”
in a speech on January 6; engaged in “prior efforts to subvert and obstruct the certification of the
results of the 2020 Presidential election,” including through a phone call to the Georgia secretary
Page 178 of state; and “threatened the integrity of the democratic system.” Id. The indictment here rests on
the very same alleged facts. President Trump was acquitted of these charges after trial in the
Senate. He is thus not a “Party convicted” under Article I, Section 3, Clause 7, and he is not subject
to “Indictment, Trial, Judgment and Punishment” for the same course of conduct. U.S. CONST. art.
I, § 3, cl. 7.
In sum, under the Constitution, the Executive Branch—including the prosecution—lacks
authority to second-guess the determination of acquittal made by the United States Senate, the
body to which the Constitution explicitly entrusts this authority. To do so violates the Impeachment
Clause and the principles of separation of powers, by unlawfully encroaching on authority
exclusively vested in Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 58589 (1952). “The Founders of this Nation entrusted the [impeachment] power to the Congress alone
in both good and bad times.” Id. at 589.
B.
The Prosecution Is Barred by Principles of Double Jeopardy.
Applying principles of double jeopardy leads to the same conclusion. The Fifth
Amendment states, “nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. CONST. amend. V. The Clause prevents the same sovereign from
subjecting a defendant to multiple, sequential charges based on the same operative facts or the
same course of conduct. See, e.g., United States v. Coughlin, 610 F.3d 89, 95 (D.C. Cir. 2010)
(holding that “a prong of double jeopardy analysis known as ‘issue preclusion’ … bars the
government from prosecuting a defendant on a charge that depends on facts that a previous
acquittal on a different charge necessarily decided in the defendant’s favor”). Under those
principles, the prosecution cannot proceed against President Trump for conduct of which he was
acquitted by the Senate.
Page 179 The fact that different branches of the federal government are at issue makes no difference.
“In applying the dual sovereignty doctrine, then, the crucial determination is whether the two
entities that seek successively to prosecute a defendant for the same course of conduct can be
termed separate sovereigns. This determination turns on whether the two entities draw their
authority to punish the offender from distinct sources of power.” Heath v. Alabama, 474 U.S. 82,
88 (1985). With respect to the federal government and the States, there are distinct sovereignties:
“The States are no less sovereign with respect to each other than they are with respect to the Federal
Government. Their powers to undertake criminal prosecutions derive from separate and
independent sources of power and authority originally belonging to them before admission to the
Union and preserved to them by the Tenth Amendment.” Id. at 89. The same is not true, however,
with respect to different branches of the federal government, all of which derive their power from
the same source—the U.S. Constitution. See id. Thus, the Executive and Judicial Branches cannot
seek to place President Trump in jeopardy for conduct of which the Legislative Branch has
absolved him—all three Branches are co-equal parts of the same “sovereign” deriving their “power
and authority” from the same “source[].” Id.
The government—through Congress—already put President Trump on trial once, placing
him in jeopardy for an alleged criminal offense arising from the same course of conduct alleged in
the indictment.5 Having failed to obtain a conviction, President Trump’s acquittal in the United
States Senate must stand, and the prosecution may not seek a retrial in this forum.
See U.S. CONST. art. III, § 2, cl. 3 (referring to impeachment trials as trials for crimes – “[t]he
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . .”).
Page 180 III.
The Indictment Violates the Fair Notice Doctrine of the Due Process Clause.
The indictment charges President Trump with crimes arising from his political advocacy
on matters of public concern made in the middle of a disputed Presidential campaign and election.
President Trump’s actions were inspired by and fully consistent with examples from many similar
contested election disputes in our Nation’s history. There is a long history in our Nation—dating
back to 1800 and encompassing elections in 1800, 1824, 1876, 1960, 2000, 2004, and 2016, among
many others—of disputing the outcome of close Presidential elections, publicly claiming that
election results were tainted by fraud, filing legal actions to challenge election results, lobbying
Congress to certify disputed election results in one side’s favor or the other, and organizing
alternate, contingent slates of electors to assist in such efforts. In other words, all the chief alleged
acts charged in the indictment have a long historical pedigree in American electoral history, and
they have long been decided in the political arena. President Trump is the first person to face
criminal charges for such core political behavior as disputing the outcome of an election. He is
charged, moreover, under statutes that facially have nothing to do with his alleged conduct, and
whose language the Special Prosecutor stretches beyond recognition. See President Trump’s
Motion to Dismiss Based on Statutory Grounds (filed separately) (“Statutory Mot.”). As a result,
President Trump could not possibly have received fair notice that his conduct was supposedly
criminal when he performed it. The indictment should be dismissed with prejudice for violation of
the fair notice requirement of the Due Process Clause.
“[A] criminal statute must give fair warning of the conduct it makes a crime.” Bouie v. City
of Columbia, 378 U.S. 347, 350–51 (1964). “The underlying principle is that no man shall be held
criminally responsible for conduct which he could not reasonably understand to be proscribed.”
United States v. Harriss, 347 U.S. 612, 617 (1954). The Supreme Court has compared the “fair
Page 181 warning” standard to the “clearly established” standard applied to civil cases under § 1983 or
Bivens cases. United States v. Lanier, 520 U.S. 259, 271–72 (1997). To be clearly established,
“existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
The fair-notice requirement cannot be satisfied by post-conduct judicial interpretation of
the statutes at issue. “If the Fourteenth Amendment is violated when a person is required ‘to
speculate as to the meaning of penal statutes,’ … or to ‘guess at (the statute’s) meaning and differ
as to its application,’ … the violation is that much greater when, because the uncertainty as to the
statute’s meaning is itself not revealed until the court’s decision, a person is not even afforded an
opportunity to engage in such speculation before committing the act in question.” Bouie, 378 U.S.
at 352 (citations omitted). “There can be no doubt that a deprivation of the right of fair warning
can result not only from vague statutory language but also from an unforeseeable and retroactive
judicial expansion of narrow and precise statutory language.” Id.; see also Rogers v. Tennessee,
532 U.S. 451, 457 (2001) (“Deprivation of the right to fair warning … can result both from vague
statutory language and from an unforeseeable and retroactive judicial expansion of statutory
language that appears narrow and precise on its face.”); Karem v. Trump, 960 F.3d 656, 666 (D.C.
Cir. 2020) (“Although courts routinely ‘clarify the law and apply that clarification to past
behavior,’ ‘the principle of fair warning requires that novel standards announced in adjudications
must not be given retroactive effect ... where they are unexpected and indefensible by reference to
the law which had been expressed prior to the conduct in issue[.]’”) (alterations and citations
omitted).
This principle of fair notice has special force here, where the lack of fair notice directly
implicates First Amendment rights. See supra Part I. “The general test of vagueness applies with
Page 182 particular force in review of laws dealing with speech. Stricter standards of permissible statutory
vagueness may be applied to a statute having a potentially inhibiting effect on speech….” Hynes
v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)) (modifications omitted);
see also, e.g., Buckley v. Valeo, 424 U.S. 1, 77 (1976) (“Due process requires that a criminal statute
provide adequate notice to a person of ordinary intelligence that his contemplated conduct is
illegal…. Where First Amendment rights are involved, an even ‘greater degree of specificity’ is
required.”); NAACP v. Button, 371 U.S. 415, 432 (1963) (“[S]tandards of permissible statutory
vagueness are strict in the area of free expression.”); Nebraska Press Ass’n v. Stuart, 427 U.S. 539,
568 (1976).
Here, President Trump’s alleged conduct—publicly and politically disputing the outcome
of the election, attempting to convince Congress to act, and allegedly organizing alternate slates
of electors—falls outside the plain language of the charged statutes, as discussed in President
Trump’s Motion to Dismiss Based on Statutory Grounds, filed separately. See Statutory Mot. No
court has ever applied these statutes to similar conduct. And the statutes’ meaning cannot be
expanded by judicial re-interpretation after the fact without violating the Due Process Clause’s
fair-notice requirement.
The extensive history of disputing elections in our Nation further demonstrates that none
of these statutes provide fair notice that the alleged conduct is criminal. As for public statements
and claims that the Presidential election was rigged and fraudulent, such claims have been a staple
of American political discourse for decades. As one commentator has quipped, “If questioning the
results of a presidential election were a crime, as many have asserted in the wake of the
controversial 2020 election and its aftermath, then much of the Democratic Party and media
establishment should have been indicted for their behavior following the 2016 election. In fact, the
Page 183 last time Democrats fully accepted the legitimacy of a presidential election they lost was in 1988.”
Hemingway, supra, at vii.6 Democratic members of Congress have voted to refuse to certify
electors after the elections of 2004 and 2016, and there have been extensive attempts to submit
alternate electors and dispute the outcome of Republican Presidential victories in recent decades.See, e.g., Ari Berman, Hillary Clinton on Trump’s Election: “There Are Lots of Questions about
Its
Legitimacy”,
Mother
Jones
(Nov.
17,
2017),
at
https://www.motherjones.com/politics/2017/11/hillary-clinton-on-trumps-election-there-are-lotsof-questions-about-its-leg
(“A year after her defeat by Donald Trump in the presidential election, Hillary Clinton says ‘there are lots of questions about its legitimacy’…”); “I
Would Be Your President”: Clinton Blames Russia, FBI Chief for 2016 Election Loss, National
Post (May 2, 2017), at https://nationalpost.com/news/world/i-would-be-your-president-clintonblames-russia-fbi-chief-for-2016-election-loss (noting Clinton “declaring herself ‘part of the
resistance’ to Donald Trump’s presidency” as an “activist citizen”); Dan Mangan, Democratic
Party Files Suit Alleging Russia, the Trump Campaign, and WikiLeaks Conspired to Disrupt the
2016 Election, CNBC (Apr. 20, 2018), at https://www.cnbc.com/2018/04/20/democratic-partyfiles-suit-alleging-russia-the-trump-campaign-and-wikileaks-conspired-to
(“The Democratic Party on Friday sued President Donald Trump’s
presidential campaign, the Russian government and the Wikileaks group, claiming a broad illegal
conspiracy to help Trump win the 2016 election.”); Rachael Revesz, Computer Scientists Say They
Have Strong Evidence Election Was Rigged against Clinton in Three Key States, Independent
(Nov. 23, 2016), at https://www.independent.co.uk/news/world/americas/wisconsin-michiganpennsylvania-election-hillary-clinton-hacked-manipul
ate (“A group of renowned computer scientists and lawyers have urged
Hillary Clinton to challenge the election results in three key states after they gathered ‘evidence’
to suggest the election results were potentially manipulated.”); see also Dan Merica, Clinton Opens
Door to Questioning Legitimacy of 2016 Election, CNN.com (Sept. 18, 2017), at
https://www.cnn.com/2017/09/18/politics/hillary-clinton-russia-2016-election/index.html; Sean
Davis, Nearly Half of Democrats Think the 2016 Election Was “Rigged”, The Federalist (Nov.
18, 2016), at https://thefederalist.com/2016/11/18/nearly-half-democrats-think-election-rigged/.

Bob Franken, Democrats Challenge Certification of Florida Bush-Gore Election Results,
CNN.com
(Nov.
16,
2000),
at
http://www.cnn.com/2000/LAW/11/16/certification.update.02.pol/index.html (noting “Florida
Democrats and Al Gore presidential campaign…challenging the certification of election results in
the tightly contested state); Jill Zuckman, et al., Black Caucus Can’t Block the Final Tally, Chicago
Tribune (Jan. 7, 2001), at https://www.chicagotribune.com/news/ct-xpm-2001-01-070101070449-story.html (“members of the Congressional Black Caucus on Saturday tried to stop
the formal recording of the Electoral College tally during a joint session of Congress… lawmakers
who supported [Democrat Al Gore] for president objected vociferously to the proceedings. One
after another, the representatives rose to prevent the electoral votes from Florida from being
counted.”); Ted Barrett, Democrats Challenge Ohio Electoral Votes, CNN.com (Jan. 6, 2005), at
https://www.cnn.com/2005/ALLPOLITICS/01/06/electoral.vote.1718/ (“Alleging widespread
Page 184 Additional historic precedent in close and contested elections supports the lawfulness of
the actions alleged in the indictment. For example, in the disputed elections of both 1876 and 1960,
competing slates of electors were sent to Congress. William Josephson & Beverly J. Ross,
Repairing the Electoral College, 22 J. LEGIS. 145, 156-57, 166 (1996); see also 146 CONG. REC.
E2180 (daily ed. Dec. 13, 2000) (statement of Rep. Mink) (“Based on the earlier certified results
[in Hawaii in 1960], the Republican electors met and cast their three votes for Nixon. The
Democratic electors also met and cast their votes for Kennedy even though they did not have a
certificate of election from the State.”) (emphasis added). In 1800, Vice President Jefferson
unilaterally made the decision to accept questionable electoral votes from Georgia that favored
him. Bruce Ackerman and David Fontana, How Jefferson Counted Himself In, THE ATLANTIC
(Mar. 2004), at https://www.theatlantic.com/magazine/archive/2004/03/how-jefferson-countedhimself-in/302888/. In 1824, when his disputed election with Andrew Jackson was decided in the
House of Representatives, President John Quincy Adams successfully lobbied the House to decide
the election in his favor—even though Jackson far exceeded his totals in both the popular vote and
electoral college—so successfully, in fact, that Jackson’s supporters accused him of striking a
‘irregularities’ on Election Day, a group of Democrats in Congress objected Thursday to the
counting of Ohio's 20 electoral votes, delaying the official certification of the 2004 presidential
election results.”); Brenna Williams, 11 Times VP Biden Was Interrupted during Trump’s
Electoral
Vote
Certification,
CNN.com
(Jan.
6,
2017),
at
https://www.cnn.com/2017/01/06/politics/electoral-college-vote-count-objections/index.html
(“During the course of the certification, House Democrats tried to object to electoral votes from
multiples states” claiming, inter alia, “electors were not lawfully certified”); Rachael Revesz,
Computer Scientists Say They Have Strong Evidence Election Was Rigged against Clinton in Three
Key
States,
Independent
(Nov.
23,
2016),
at
https://www.independent.co.uk/news/world/americas/wisconsin-michigan-pennsylvaniaelection-hillary-clinton-hacked-manipul
ate (“So far, six electoral college voters said they would not vote for Mr Trump.
Meanwhile more than 4.5 million people have signed a petition for more electoral college delegates
to defy the instructions given to them in their state.”).
Page 185 “corrupt bargain” with House Speaker Henry Clay, whom Adams soon appointed Secretary of
State. And in 1960, Vice President Nixon—himself a candidate—decided which competing slate
of electors to accept from Hawaii. Herb Jackson, What Happens When a State Can’t Decide on its
Electors, ROLL CALL (Oct. 26, 2020), at https://rollcall.com/2020/10/26/we-the-people-whathappens-when-a-state-cant-decide-on-its-electors/; see also 146 CONG. REC. E2180 (daily ed. Dec.
13, 2000) (statement of Rep. Mink) (“Vice President Nixon, sitting as the presiding officer of the
joint convention of the two Houses, suggested that the electors named in the certificate of the
Governor dated January 4, 1961 be considered the lawful electors from Hawaii. There was no
objection to the Vice President’s suggestion . . .”). In the 2000 election contest, three Supreme
Court justices pointed to the Hawaii situation in 1960 to emphasize that competing slates of
electors could be submitted to Congress and that Congress could make the decision on which slate
to accept:
But, as I have already noted, those provisions [of the Electoral Count
Act] merely provide rules of decision for Congress to follow when
selecting among conflicting slates of electors. They do not prohibit
a State from counting what the majority concedes to be legal votes
until a bona fide winner is determined. Indeed, in 1960, Hawaii
appointed two slates of electors and Congress chose to count the
one appointed on January 4, 1961, well after the Title 3 deadlines.
Bush, 531 U.S. 98, 127 (2000) (Stevens, J., dissenting) (internal citations omitted) (emphasis
added). In addition, the actions charged in the indictment against President Trump were consistent
with the provisions of the then-current version of the Electoral Count Act, as it then provided
before its recent revisions. 3 U.S.C. § 15 (2020). Indeed, the very fact that Congress decided to
amend the Electoral Count Act at all demonstrates that it did not prohibit (let alone criminalize)
mechanisms such as alternate electors or lobbying the Vice President, all of which further proves
that this criminal prosecution violates the fair notice provisions of the Due Process Clause.
Page 186 At the time of the allegations in the indictment, the only relevant judicial precedent, from
2000, treated post-election challenges as lawful and included a dissent arguing that competing
elector slates could be submitted to Congress for Congress to decide which to accept. Furthermore,
the actions listed in the Indictment had been performed in 1800, 1824, 1876, and 1960, among
others, without any suggestion they were criminal. Scores of people have been involved in similar
conduct over the years of American history, and none has faced criminal prosecution. On these
facts, at best, “men of common intelligence must necessarily guess” if President Trump’s conduct
violated the statute, and the charges thus violate the Due Process Clause. Hynes, 425 U.S. at (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).
CONCLUSION
The Court should dismiss the indictment with prejudice.
Dated: October 23,
Respectfully submitted,
Todd Blanche, Esq. (PHV)
toddblanche@blanchelaw.com
Emil Bove, Esq. (PHV)
Emil.Bove@blanchelaw.com
BLANCHE LAW
99 Wall St., Suite New York, NY (212) 716-
/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
Page 187 Although courts have in rare instances exercised their discretion to permit third-party submissions in criminal
cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of
amicus curiae briefs. At this time, the court does not find it necessary to depart from the ordinary procedural
course by permitting this filing.
LEAVE TO FILE
DENIED
Tanya S. Chutkan
11/9/
Page 188
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