UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 23-257 (TSC) DONALD J. TRUMP,
Defendant.
OPINION AND ORDER
Defendant Donald J. Trump has filed a Motion for Order to Show Cause Why
Prosecutors Should Not Be Held in Contempt, ECF No. 192 (“Motion”). He contends that the
Government has violated a court order by continuing to produce discovery and by filing a motion
in limine while the deadlines in this case are stayed. The Motion states:
To remedy this outrageous conduct, the Court should issue an order to show cause why the prosecutors should not be: (1) held in contempt; (2) required to immediately withdraw their [motion in limine] and improper productions; (3) forbidden from submitting any further filing or production absent the Court’s express permission while the Stay Order is in effect; and (4) assessed monetary sanctions in the amount of President Trump’s reasonable attorneys’ fees and expenses incurred in responding to the prosecutors’ improper productions and filings, including in litigating this Motion.
Motion at 2. For the reasons set forth below, the court will GRANT in part and DENY in part
the Motion.
I. BACKGROUND
Defendant has appealed the court’s decision denying his motions to dismiss based on
Presidential immunity and constitutional grounds. Notice of Appeal, ECF No. 177. On
December 13, 2023, the court granted in part and denied in part Defendant’s motion to stay these
proceedings pending that appeal. Opinion and Order, ECF No. 186 (“Stay Order”). In the Stay
Page 1 of 6 Order, the court “agree[d] with both parties that Defendant’s appeal automatically stays any
further proceedings that would move this case towards trial or impose additional burdens of
litigation on Defendant.” Id. at 2. Accordingly, the court stayed “the deadlines and proceedings
scheduled by its Pretrial Order, as amended.” Id. (citing ECF No. 39). The court emphasized,
however, (1) that the Stay Order “held in abeyance” rather than “permanently vacated” those
deadlines and proceedings, and (2) that it did not understand the appeal and corresponding stay
“to divest it of jurisdiction to enforce the measures it has already imposed to safeguard the
integrity of these proceedings” because “[u]nlike, for example, requiring additional discovery or
briefing, maintaining those measures does not advance the case towards trial or impose burdens
of litigation on Defendant beyond those he already carries.” Id. at 2–3.
On December 17 and 18, respectively, the Government produced additional discovery
and a draft exhibit list to Defendant. Resp. to Notice of Service, ECF No. 189. The defense
objected to the Government by letter. Id., Ex. A. Then, on December 27, the Government filed
a Motion in Limine seeking to exclude certain evidence and arguments from any eventual trial in
this case. ECF No. 191. Other than noting his objections and filing this Motion, Defendant has
not responded to the Government’s actions. The court has likewise not taken any action or
imposed any new requirements on the parties. Notwithstanding the deadlines and proceedings
stayed in this case, “there is no dispute that the Court retains jurisdiction over the Stay Order
itself, and thus any contempt proceedings flowing from” it. Motion at 8.
II. LEGAL STANDARD
Civil contempt is “used to obtain compliance with a court order or to compensate for
damage sustained as a result of noncompliance.” NLRB v. Blevins Popcorn Co., 659 F.2d 1173,
1184 (D.C. Cir. 1981). “A party moving for civil contempt must show, by clear and convincing
evidence, that ‘(1) there was a clear and unambiguous court order in place; (2) that order Page 2 of 6 required certain conduct by [respondents]; and (3) [respondents] failed to comply with that
order.’” Commodity Futures Trading Comm’n v. Trade Exch. Network Ltd., 117 F. Supp. 3d 22,
26 (D.D.C. 2015) (quoting United States v. Latney’s Funeral Home, Inc., 41 F. Supp. 3d 24, 29–
30 (D.D.C. 2014)). “A clear and unambiguous order does not leave any reasonable doubt ‘as to
what behavior was expected and who was expected to behave in the indicated fashion.’” Id.
(quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir. 1991)).
III. DISCUSSION
The Stay Order did not clearly and unambiguously prohibit the Government actions to
which Defendant objects. Start with its operative sentence, which stayed “the deadlines and
proceedings scheduled by its Pretrial Order, as amended.” Stay Order at 2. The Pretrial Order
set specific dates for certain proceedings (such as the trial, set for March 4, 2024) and imposed
deadlines for other filings (such as motions in limine, due December 27, 2023). ECF No. 39.
Before the Stay Order, the parties were required to attend those proceedings and submit filings
on the designated dates. By holding those dates in abeyance, the Stay Order lifted those
requirements—reflecting the court’s conclusion that Defendant should not “stand trial or face the
other burdens of litigation, such as discovery obligations” during the pendency of his appeal.
Stay Order at 2 (cleaned up). But staying the deadline for a filing is not the same thing as
affirmatively prohibiting it. The basic function of a deadline is not to authorize a filing, but to
time-limit it; correspondingly, the lifting of a deadline removes that time limit but does not
necessarily bar the filing. On its own terms, then, the Stay Order’s key operative sentence did
not clearly bar the Government from voluntary rather than obligatory compliance with the
Pretrial Order’s now-stayed deadlines.
The rest of the Stay Order did not unambiguously forbid the Government’s actions,
either. Defendant claims it contained an “explicit holding that ‘additional discovery’ and Page 3 of 6 ‘briefing’ would violate” it. Motion at 11. That is incorrect. The Stay Order reasoned that
“requiring additional discovery or briefing” would “advance the case towards trial or impose
burdens of litigation on Defendant.” Stay Order at 3 (emphasis added). But neither the court nor
the Government has imposed any such requirement. And as Defendant acknowledges, he has,
“consistent with his rights under the Stay Order, refused to accept or substantively respond” to
the Government’s actions. Motion at 12–13.
Moreover, the Government’s productions and filings have been mostly compatible with
the Stay Order’s broader purpose, which was to relieve Defendant from the burdens of preparing
for trial and other pretrial litigation. Stay Order at 2. The court cannot conclude that merely
receiving discovery or an exhibit list constitutes a meaningful burden. That receipt requires no
review or response. Defendant argues that he “must preserve his rights by clarifying that he will
not accept” such materials, evidently by drafting a letter objecting to their delivery. Reply in
Supp. of Motion at 2, ECF No. 194 (“Reply”); see ECF No. 189. But Defendant does not
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 23-257 (TSC) DONALD J. TRUMP,
Defendant.
OPINION AND ORDER
Defendant Donald J. Trump has filed a Motion for Order to Show Cause Why
Prosecutors Should Not Be Held in Contempt, ECF No. 192 (“Motion”). He contends that the
Government has violated a court order by continuing to produce discovery and by filing a motion
in limine while the deadlines in this case are stayed. The Motion states:
To remedy this outrageous conduct, the Court should issue an order to show cause why the prosecutors should not be: (1) held in contempt; (2) required to immediately withdraw their [motion in limine] and improper productions; (3) forbidden from submitting any further filing or production absent the Court’s express permission while the Stay Order is in effect; and (4) assessed monetary sanctions in the amount of President Trump’s reasonable attorneys’ fees and expenses incurred in responding to the prosecutors’ improper productions and filings, including in litigating this Motion.
Motion at 2. For the reasons set forth below, the court will GRANT in part and DENY in part
the Motion.
I. BACKGROUND
Defendant has appealed the court’s decision denying his motions to dismiss based on
Presidential immunity and constitutional grounds. Notice of Appeal, ECF No. 177. On
December 13, 2023, the court granted in part and denied in part Defendant’s motion to stay these
proceedings pending that appeal. Opinion and Order, ECF No. 186 (“Stay Order”). In the Stay
Page 1 of 6 Order, the court “agree[d] with both parties that Defendant’s appeal automatically stays any
further proceedings that would move this case towards trial or impose additional burdens of
litigation on Defendant.” Id. at 2. Accordingly, the court stayed “the deadlines and proceedings
scheduled by its Pretrial Order, as amended.” Id. (citing ECF No. 39). The court emphasized,
however, (1) that the Stay Order “held in abeyance” rather than “permanently vacated” those
deadlines and proceedings, and (2) that it did not understand the appeal and corresponding stay
“to divest it of jurisdiction to enforce the measures it has already imposed to safeguard the
integrity of these proceedings” because “[u]nlike, for example, requiring additional discovery or
briefing, maintaining those measures does not advance the case towards trial or impose burdens
of litigation on Defendant beyond those he already carries.” Id. at 2–3.
On December 17 and 18, respectively, the Government produced additional discovery
and a draft exhibit list to Defendant. Resp. to Notice of Service, ECF No. 189. The defense
objected to the Government by letter. Id., Ex. A. Then, on December 27, the Government filed
a Motion in Limine seeking to exclude certain evidence and arguments from any eventual trial in
this case. ECF No. 191. Other than noting his objections and filing this Motion, Defendant has
not responded to the Government’s actions. The court has likewise not taken any action or
imposed any new requirements on the parties. Notwithstanding the deadlines and proceedings
stayed in this case, “there is no dispute that the Court retains jurisdiction over the Stay Order
itself, and thus any contempt proceedings flowing from” it. Motion at 8.
II. LEGAL STANDARD
Civil contempt is “used to obtain compliance with a court order or to compensate for
damage sustained as a result of noncompliance.” NLRB v. Blevins Popcorn Co., 659 F.2d 1173,
1184 (D.C. Cir. 1981). “A party moving for civil contempt must show, by clear and convincing
evidence, that ‘(1) there was a clear and unambiguous court order in place; (2) that order Page 2 of 6 required certain conduct by [respondents]; and (3) [respondents] failed to comply with that
order.’” Commodity Futures Trading Comm’n v. Trade Exch. Network Ltd., 117 F. Supp. 3d 22,
26 (D.D.C. 2015) (quoting United States v. Latney’s Funeral Home, Inc., 41 F. Supp. 3d 24, 29–
30 (D.D.C. 2014)). “A clear and unambiguous order does not leave any reasonable doubt ‘as to
what behavior was expected and who was expected to behave in the indicated fashion.’” Id.
(quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17 (1st Cir. 1991)).
III. DISCUSSION
The Stay Order did not clearly and unambiguously prohibit the Government actions to
which Defendant objects. Start with its operative sentence, which stayed “the deadlines and
proceedings scheduled by its Pretrial Order, as amended.” Stay Order at 2. The Pretrial Order
set specific dates for certain proceedings (such as the trial, set for March 4, 2024) and imposed
deadlines for other filings (such as motions in limine, due December 27, 2023). ECF No. 39.
Before the Stay Order, the parties were required to attend those proceedings and submit filings
on the designated dates. By holding those dates in abeyance, the Stay Order lifted those
requirements—reflecting the court’s conclusion that Defendant should not “stand trial or face the
other burdens of litigation, such as discovery obligations” during the pendency of his appeal.
Stay Order at 2 (cleaned up). But staying the deadline for a filing is not the same thing as
affirmatively prohibiting it. The basic function of a deadline is not to authorize a filing, but to
time-limit it; correspondingly, the lifting of a deadline removes that time limit but does not
necessarily bar the filing. On its own terms, then, the Stay Order’s key operative sentence did
not clearly bar the Government from voluntary rather than obligatory compliance with the
Pretrial Order’s now-stayed deadlines.
The rest of the Stay Order did not unambiguously forbid the Government’s actions,
either. Defendant claims it contained an “explicit holding that ‘additional discovery’ and Page 3 of 6 ‘briefing’ would violate” it. Motion at 11. That is incorrect. The Stay Order reasoned that
“requiring additional discovery or briefing” would “advance the case towards trial or impose
burdens of litigation on Defendant.” Stay Order at 3 (emphasis added). But neither the court nor
the Government has imposed any such requirement. And as Defendant acknowledges, he has,
“consistent with his rights under the Stay Order, refused to accept or substantively respond” to
the Government’s actions. Motion at 12–13.
Moreover, the Government’s productions and filings have been mostly compatible with
the Stay Order’s broader purpose, which was to relieve Defendant from the burdens of preparing
for trial and other pretrial litigation. Stay Order at 2. The court cannot conclude that merely
receiving discovery or an exhibit list constitutes a meaningful burden. That receipt requires no
review or response. Defendant argues that he “must preserve his rights by clarifying that he will
not accept” such materials, evidently by drafting a letter objecting to their delivery. Reply in
Supp. of Motion at 2, ECF No. 194 (“Reply”); see ECF No. 189. But Defendant does not
identify—and the court is not aware—of any rights that would not be preserved absent such an
objection, given the stay in place. Because the Stay Order appears to have been interpreted
differently by the parties, the court will clarify: If Defendant wishes to raise objections to the
Government’s productions, he may do so without any risk of forfeiture if and when the mandate
is returned and the court sets a new schedule. Contrary to Defendant’s assertion, the court has
not and will not set deadlines in this case based on the assumption that he has undertaken
preparations when not required to do so. See Tr. of Status Hr’g at 55, ECF No. 38 (“A trial start
date of March 4, 2024, gives Mr. Trump seven months between indictment and trial, which I
believe is sufficient time to advise with counsel and prepare his defense.”). In the meantime, he
is not required to carry any meaningful burdens with respect to those productions.
Page 4 of 6 The same is largely—but not completely—true of the Government’s Motion in Limine.
Defendant concedes that he is not required to respond to the motion during the pendency of the
stay, and the court reaffirms that he forfeits no arguments or rights by choosing not to respond at
this time. Motion at 2. Nonetheless, he argues that the Government’s filing of a substantive
motion imposes burdens on him by (1) requiring him to review it in full to determine whether it
is “not involved in the appeal” and therefore does necessitate a timely response, and (2)
subjecting him to negative media coverage. Reply at 2. The court agrees with the first
contention, at least; diligent defense counsel will need to conduct a preliminary review of each
substantive motion the Government files in order to know whether they need to take further
action. While that is not a major burden, it is a cognizable one. Accordingly, the court will
adopt Defendant’s recommendation that the parties be forbidden from filing any further
substantive pretrial motions without first seeking leave from the court. See Motion at 2. Any
such motion for leave to file shall state whether the proposed motion is ancillary to the pending
appeal and so requires a timely response or other action before the mandate is returned. This
measure is an addition to the Stay Order, aimed to further advance its purposes, and does not
reflect a determination that the Government has violated any of its clear and unambiguous terms
or acted in bad faith.
Page 5 of 6 IV. CONCLUSION
For these reasons, Defendant’s Motion for Order to Show Cause Why Prosecutors Should
Not Be Held in Contempt, ECF No. 192, is hereby GRANTED in part and DENIED in part.
Specifically, it is GRANTED in that until the mandate is returned in this case, the parties shall
not file any substantive pretrial motions without first seeking leave of court, and any such request
for leave shall state whether the proposed motion concerns matters involved in the appeal or is
instead ancillary to it. In all other respects, Defendant’s Motion is DENIED.
Date: January 18, 2024
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 6 of 6