Case 9:23-cr-80101-AMC Document 664 Entered on FLSD Docket 07/05/2024 Page 1 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

UNITED STATES OF AMERICA,

vs. Case No. 23-80101-CR

CANNON/REINHART
DONALD J. TRUMP, et al.,

Defendants.

PRESIDENT DONALD J. TRUMP’S MOTION FOR SUPPLEMENTAL

BRIEFING ON PRESIDENTIAL IMMUNITY AND A PARTIAL STAY

President Donald J. Trump respectfully submits this motion for (1) leave to file

supplemental briefing regarding the implications of Trump v. United States for the pending

Presidential-immunity motion, ECF No. 324; and (2) a partial stay of further proceedings—with

the exception of the pending gag-order motion, ECF No. 592—until President Trump’s motions

based on Presidential immunity and the Appointments and Appropriations Clauses are resolved.1

A partial stay that pauses CIPA and other litigation is warranted based on the reasoning in

Trump, and such a stay would be consistent with DOJ policies and practices that the Special

Counsel’s Office claims to be bound by but is largely ignoring. Resolution of these threshold

questions is necessary to minimize the adverse consequences to the institution of the Presidency

arising from this unconstitutional investigation and prosecution. A partial stay is also appropriate

to prevent further exploitation of judicial institutions and resources by Executive Branch personnel

in connection with the shameful ongoing lawfare campaign. Exigency supporting a partial stay is

demonstrated by President Biden’s July 1, 2024 public comment—from inside the White House—

1
Defendants Waltine Nauta and Carlos De Oliveira join in the motion for a partial stay.
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linking Jack Smith’s abuse of the criminal justice process to Biden’s desperate and failing attempts

to communicate with voters prior to the 2024 presidential election.

These efforts are so extreme and fanatical that on July 2, 2024, in an apparent response to

President Biden’s exceedingly weak debate performance on June 27, government officials leaked

to the Washington Post Smith’s misguided plans to continue to prosecute President Trump even

as the President-elect. Those leaks were a blatant violation of DOJ policy and practice, with no

apparent consequences to those responsible for the malfeasance, that has obvious relevance to the

Court’s Appointments Clause inquiries regarding the unchecked discretion and lack of oversight

enjoyed by the Smith as he seeks to subvert the upcoming election. Collectively, these

circumstances call for heightened caution while the Court addresses threshold issues regarding

Smith’s lack of authority to drive this prosecution forward on the dangerous and reckless course

he has repeatedly sought to foist upon the Court. For these reasons, a partial stay is appropriate.

I. Supplemental Briefing

Consistent with President Trump’s pending motion to dismiss based on Presidential

immunity, the Supreme Court explained in Trump that it would “eviscerate the immunity we have

recognized” if a prosecutor could “do indirectly what he cannot do directly—invite the jury to

examine acts for which a President is immune from prosecution to nonetheless prove his liability

on any charge.” 2024 WL 3237603, at *19. Thus, “even when an indictment alleges only

unofficial conduct,” which is not the case here, prosecutors cannot “[u]se evidence” of official

acts. Id. Based on this reasoning, like the trial court in the Trump case, Your Honor must undertake

the “necessarily factbound analysis” regarding whether alleged conduct “is official or unofficial.”

Id.

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To facilitate that process, the parties respectfully request permission to file supplemental

briefing regarding Presidential immunity and the Trump decision pursuant to the following

schedule:

• President Trump’s Opening Brief: July 26, 2024;

• Special Counsel’s Office Response: August 23, 2024; and

• President Trump’s Reply: September 9, 2024.

II. Partial Stay

The Court should stay all other proceedings in the case, except the pending gag-order

motion, until the motions relating to Presidential immunity and the Appointments and

Appropriations Clauses are resolved. The partial stay should include a pause on CIPA litigation—

which is extremely resource-intensive for the defense, the Court and its staff, the security and staff

responsible for making the courthouse and relevant secure facilities available, and the Classified

Information Security Officer—because the Court’s rulings on the Presidential immunity issues

will frame any necessary admissibility and substitution decisions under CIPA § 6.

As to Presidential immunity, Chief Justice Roberts reasoned that “[q]uestions about

whether the President may be held liable for particular actions, consistent with the separation of

powers, must be addressed at the outset of a proceeding.” Trump, 2024 WL 3237603, at *22

(emphasis added). He expressed concern that courts in the District of Columbia had rendered their

“decisions on a highly expedited basis” despite the “unprecedented nature” of that case. Id. at *13;

see also id. at *18 (referring to “[t]he concerns we noted at the outset—the expedition of this case,

the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties

. . .”). In this equally unprecedented case, the Presidential immunity questions implicate important

Presidential powers discussed in Trump, such as “foreign relations responsibilities,” “meeting

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foreign leaders,” “overseeing international diplomacy and intelligence gathering, “managing

matters related to terrorism,” and “responsibility for the actions of the many departments and

agencies within the Executive Branch.” Id. at *8.

Regarding the Appointments Clause, including the principal-officer issue, Justice Thomas

reasoned in his concurrence:

If this unprecedented prosecution is to proceed, it must be conducted by someone duly

authorized to do so by the American people. The lower courts should thus answer these
essential questions concerning the Special Counsel’s appointment before proceeding.

Id. at 25; see also id. at 28 (“Perhaps there is an answer for why these statutes create an office for

the Special Counsel. But, before this consequential prosecution proceeds, we should at least

provide a fulsome explanation of why that is so.” (Thomas, J., concurring)).

A partial stay pending resolution of threshold constitutional questions would be consistent

with the election-inference prohibition in the Justice Manual, which the Special Counsel’s Office

is falsely purporting to follow. See, e.g., 6/21/24 Tr. 147:13-14, 148:3-7. As the Court is aware,

Justice Manual § 9-85.500 prohibits “[f]ederal prosecutors and agents” from “select[ing] the

timing of any action . . . for the purpose of affecting any election.” Id. On the list of the Office’s

misrepresentations to the Court in this case is the ludicrous claim at the March 1, 2024 hearing that

§ 9-85.500 “does not apply to cases that have already been charged.” 3/1/24 Tr. 80.

The falsity of that assertion is plain from the reference to “any action” in Justice Manual

§ 9-85.500. The Attorney General made this clear in a June 24, 2024 memorandum regarding

“Election Year Sensitivities.” See Ex. A. Citing Justice Manual § 9-85.500 and other provisions,

the Attorney General accurately described the DOJ policy that the Special Counsel’s Office is

actively violating while allegedly under his supervision:

Law enforcement officers and prosecutors may never select the timing of public statements
(attributed or not), investigative steps, criminal charges, or any other action in any matter

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or case for the purpose of affecting any election, or for the purpose of giving an advantage
or disadvantage to any candidate or political party. Such a purpose, or the appearance of
such a purpose, is inconsistent with the Department’s mission and with the Principles of
Federal Prosecution.

Id. at 1. The Office’s misrepresentation regarding the scope of Justice Manual § 9-85.500 and

their ongoing disregard of the provision, apparently without consequences, are relevant to the

Court’s consideration of whether Smith is a principal officer under the Appointments Clause

because of his lack of a functional superior at DOJ as well as his unchecked (and wildly abused)

discretion. The Attorney General’s recent guidance regarding Justice Manual § 9-85.500 also

demonstrates that no prejudice would result from the requested partial stay because the Office

should not be taking “any action” that could even create the “appearance” of interference with the

election. Ex. A at 1.

Such a stay would be consistent with DOJ’s separate “Unwritten 60-Day Rule.”2

According to DOJ’s Office of the Inspector General (“DOJ-OIG”), “[s]everal Department officials

described a general principle of avoiding interference in elections rather than a specific time period

before an election during which overt investigative steps are prohibited.” DOJ-OIG Report at 18.

Raymond Hulser, who is now working for Jack Smith, told DOJ-OIG that “there is a general

admonition that politics should play no role in investigative decisions, and that taking investigative

steps to impact an election is inconsistent with the Department’s mission and violates the principles

of federal prosecution.” Id. at 18. This “Rule,” or “admonition,” is another one of the DOJ

practices that, like the Justice Manual, the Office claims to owe fealty. See 6/21/24 Tr. 148:23-25.

2
A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice
in Advance of the 2016 Election, Office of Inspector General, U.S. Dep’t of Justice (June 2018)
(the “DOJ-OIG Report”) at 17-18, https://s3.documentcloud.org/documents/4515884/DOJ-OIG-
2016-Election-Final-Report.pdf.
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DOJ-OIG’s 2018 Report detailed statements from several former high-ranking DOJ

officials regarding this established practice, which the Special Counsel’s Office is ignoring:

• Jim Comey: “[W]e avoid taking any action in the run up to an election, if we can
avoid it.” Id. at 17.

• Loretta Lynch: “[I]n general, the practice has been not to take actions that might
have an impact on an election, even if it’s not an election case or something like
that.” Id. at 18.

• Sally Yates: “To me if it were 90 days off, and you think it has a significant chance
of impacting an election, unless there’s a reason you need to take that action now
you don’t do it.” Id. at 18.

President Biden’s public comments following the Trump decision on July 1, 2024,

confirmed the ongoing violations of DOJ policy and practice arising from Jack Smith’s efforts to

rush this deeply flawed case—and the similarly flawed and politically-motivated Trump case in

the District of Columbia—to trial. Referring to Smith’s prosecution in the District of Columbia,

President Biden argued that “the American people deserve to have an answer in the courts before

the upcoming election.”3 The remark explicitly connected the Special Counsel’s Office with

President Biden’s misuse of the criminal justice system to communicate with voters prior to the

election. President Biden effectively confessed to spearheading the unconstitutional,

unprecedented, and ultimately unsuccessful lawfare campaign joined by Smith’s Office, DOJ and

other federal agencies, and the private interests backing them as they desperately try to prevent the

American people from electing President Trump. President Biden essentially boasted about being

the root cause of the “prospect of an Executive Branch that cannibalizes itself.” Trump, 2024 WL

3237603, at *24.

3
Remarks by President Biden on the Supreme Court’s Immunity Ruling, July 1, 2024,
https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/07/01/remarks-by-president-
biden-on-the-supreme-courts-immunity-ruling.
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Remarkably, on the day after President Biden’s remarks and not long after President

Trump’s overwhelming debate victory, “people familiar with” DOJ’s “internal deliberations” fully

embraced their role in this abomination by telling the media that Jack Smith and DOJ plan to

“pursue the criminal cases against Donald Trump past Election Day even if he wins . . . .” Ex. B

(Washington Post article). The decision to perpetrate these leaks as part of the response to

President Biden’s crushing debate defeat resolves any doubt that Smith and the Special Counsel’s

Office prioritize politics over justice. Smith’s indirect notification to the media and his allies that

he has no qualms about prosecuting President Trump, even as President-elect after more than 100

million Americans cast their votes, is in blatant violation of DOJ policy and practice. Having

falsely and implausibly alleged that President Trump conspired “against the right to vote and to

have one’s vote counted” in connection with the 2020 election,4 Smith has forecast his and DOJ’s

willingness to violate those civil rights as part of President Biden’s election-interference mission.

The July 2, 2024 leaks by DOJ and the Special Counsel’s Office violated the Attorney

General’s June 24 guidance that (1) “prosecutors may never select the timing of public statements

(attributed or not) . . . for the purpose of giving an advantage or disadvantage to any candidate”;

and (2) even “the appearance of such a purpose” is “inconsistent with the Department’s mission

and with the Principles of Federal Prosecution.” Ex. A at 1 (emphasis added). If the Office

continues to oppose this stay request, they should be required to identify the source of these leaks,

address the apparent violations of DOJ policy, and explain what remedial measures have been put

in place.

In conclusion, President Biden’s lawfare confession, the government’s recent leaks, and

the underlying details will require dismissal of the Superseding Indictment for multiple reasons,

4
Indictment ¶ 4, United States v. Trump, No. 23 Cr. 257 (D.D.C. Aug. 1, 2023).
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including selective and vindictive prosecution, prosecutorial misconduct, and violations of the

Fourth Amendment, due process, and the attorney-client privilege, among other rights. For

purposes of this motion, however, our request is a modest one. The Court should resolve the

threshold questions identified in Trump relating to Presidential immunity and the Appointments

Clause, as well as the related issues presented in the Appropriations Clause motion, prior to

addressing the other numerous problems with this case.

Dated: July 5, 2024 Respectfully submitted,

/s/ Todd Blanche / Emil Bove

Todd Blanche (PHV)
[email protected]
Emil Bove (PHV)
[email protected]
Kendra L. Wharton (Fla. Bar No. 1048540)
[email protected]
BLANCHE LAW PLLC
99 Wall Street, Suite 4460
New York, New York 10005
(212) 716-1250

/s/ Christopher M. Kise

Christopher M. Kise
Florida Bar No. 855545
[email protected]
CONTINENTAL PLLC
255 Alhambra Circle, Suite 640
Coral Gables, Florida 33134
(305) 677-2707

Counsel for President Donald J. Trump

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CERTIFICATE OF CONFERENCE

I hereby certify that on July 3, 2024, counsel for President Trump and the Special Counsel’s

Office conferred in a good faith effort to resolve the issues herein, but were unable to do so with

respect to President Trump’s stay motion. The Special Counsel’s Office requested that we include

the following statement:

The Government objects to a stay and requests an opportunity to respond to any stay
motion within the time the Local Rules provide.

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CERTIFICATE OF SERVICE

I, Kendra L. Wharton, certify that on July 5, 2024, I electronically filed the foregoing

document with the Clerk of Court using CM/ECF.

/s/ Kendra L. Wharton

Kendra L. Wharton

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