On Saturday: Memorandum in Opposition by USA as to DONALD J. TRUMP re 167 Motion to Compel and in Opposition to ECF No. 166-1 (Motion for an Order Regarding the Scope of the Prosecution Team) (Windom, Thomas) (Entered: 12/09/2023)
https://www.courtlistener.com/docket/67656604/181/united-states-v-trump/
Yesterday, Sunday: Memorandum in Opposition by USA as to DONALD J. TRUMP re 178 Motion for Order (Gaston, Molly) (Entered: 12/10/2023)
https://www.courtlistener.com/docket/67656604/united-states-v-trump/?page=2
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...The Court should not assume at this juncture that no issue can arise that is not involved
in the appeal. For example, the Circuit recently returned the mandate on the Court’s Rule 57.7
order regarding extrajudicial statements, and the Court has jurisdiction to administer that order.
Likewise, nothing about the defendant’s appeal prevents the Court from continuing to enforce—
including, if necessary, by ordering briefing or holding hearings—the protective orders governing
discovery (ECF Nos. 28 and 37) and the order imposing conditions of release on the defendant
(ECF No. 13).
In addition, while the appeal is pending, the Court can make headway on the motions
already before it, including the defendant’s motions to dismiss based on statutory grounds and
selective and vindictive prosecution. The Court can and should properly deny these motions under
Federal Rule of Criminal Procedure 37, which provides that a district court retains the authority to
deny pending motions that it otherwise “lacks authority to grant because of an appeal that has been
docketed and is pending.” Fed. R. Crim. P. 37(a)(2). Similarly, if the defendant initiates certain
litigation—as he has done by filing his stay motion—the Court can take it up and resolve it. See,
e.g., Jefferson, ECF No. 199 (hearing on several motions filed by the defendant while defendant’s
Speech or Debate interlocutory appeal was pending); United States v. McDade, No. 92-cr-249,
1994 WL 161243, at *1 (E.D. Pa. Apr. 15, 1994) (resolving defendant’s motion for issuance of
deposition subpoenas while his interlocutory appeal of the denial of his motion to dismiss on
Speech or Debate grounds was pending).
For its part, in light of the public’s strong interest in a prompt trial, the Government will
seek to ensure that trial proceeds as scheduled. In particular, the Government will continue to
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meet all of its deadlines in the Court’s pretrial schedule, ECF No. 39. This means that, while the
appeal is pending, although the defendant will not be subjected to the “burdens of litigation,” ECF
No. 178 at 5, the Government will continue to shoulder its own burden. Accordingly, the
Government will provide the defendant and the Court with any notice required by the pretrial
schedule, and more—including, depending on the length of the appellate process, the
Government’s exhibit list, motions in limine, and other pleadings pertaining to the Government’s
trial presentation. Any filings the Government makes according to this Court’s schedule while the
appeal is pending can then be promptly litigated if the Court’s order is affirmed and the mandate
is returned.
To the extent that the defendant is seeking a stay, pending his appeal, of matters implicating
“those aspects of the case involved in the appeal,” Griggs, 559 U.S. at 58, the Court should deny
his motion as unnecessary and duplicative; that divestiture occurred when the defendant filed his
notice of appeal. Otherwise, the Court should decline to issue an order that would prevent it from
resolving pending motions or handling aspects of this case unrelated to the appeal.
Respectfully submitted,
JACK SMITH
Special Counsel
By: /s/ Molly Gaston
Molly Gaston
Thomas P. Windom
Senior Assistant Special Counsels
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