Lee v. Trump

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

BARBARA J. LEE et al., ) Case No. 21-cv-00400 (APM)

)

Plaintiffs, ) Consolidated Member Cases:

) 21-cv-00586 (APM)

v. ) 21-cv-00858 (APM)

) 21-cv-02265 (APM)

DONALD J. TRUMP et al., ) 22-cv-00010 (APM)

) 22-cv-00011 (APM)

Defendants. ) 22-cv-00034 (APM)

_________________________________________ ) 23-cv-00038 (APM)

MEMORANDUM OPINION AND ORDER

I.

On March 31, 2026, the court issued a Memorandum Opinion that largely denied President

Donald J. Trump’s motion for summary judgment as to official-acts immunity. Mem. Op.,

ECF No. 219. The court held that, with some exceptions, President Trump had failed to meet his

burden of showing that his alleged conduct up to and on January 6, 2021, fell within the outer

perimeter of his official duties. Id. at 17–58. Additionally, the court rejected the United States’

attempt under the Westfall Act to substitute itself as the defendant for Plaintiffs’ District of

Columbia law claims. Id. at 70–76. 1 Both President Trump and the United States have appealed

those rulings. Def. Trump’s Notice of Appeal, ECF No. 220; U.S. Notice of Appeal, ECF No. 224.

They now ask the court to stay these consolidated proceedings in their entirety pending appellate

review. Def. Trump’s Joint Mot. to Stay Pending Appeal, ECF No. 226 [hereinafter Trump Mot.];

U.S. Mot. to Stay, ECF No. 229 [hereinafter U.S. Mot.]. Certain other defendants have joined this

request. Joint Status Report, ECF No. 230, at 9–10. For their part, Plaintiffs argue that no stay is

1

Not all Plaintiffs have asserted claims under District of Columbia law, but for simplicity, the court refers to these as

belonging to all “Plaintiffs.”

warranted, even as to President Trump. See generally Pls.’ Opp’n to Defs.’ Mots. to Stay Discovery

Pending Appeal, ECF No. 232 [hereafter Pls.’ Opp’n].

For the reasons explained below, the court stays all proceedings in all cases except Smith.

In Smith, the court stays discovery only as to President Trump but permits other discovery to

continue.

II.

In December 2023, the D.C. Circuit affirmed this court’s denial of President Trump’s

motions to dismiss based on official-acts immunity and remanded for further immunity-related

proceedings. See Blassingame, v. Trump, 87 F.4th 1, 29–30 (D.C. Cir. 2023). This court then

consolidated these cases to resolve common legal questions and to facilitate discovery of common

questions of fact. See, e.g., Order, ECF No. 78. They have proceeded in lockstep ever since.

Consolidation did not mean, however, that the cases lost their separate identities or that the

parties’ substantial rights were altered. As the Supreme Court observed in Hall v. Hall, cases

consolidated under Federal Rule of Civil Procedure 42(a) “retain[] [their] separate character” and

“do not lose their separate identity because of consolidation.” 584 U.S. 59, 76 (2018) (first quoting

Bank Markazi v. Peterson, 578 U.S. 212, 233 (2016); then quoting 9A Wright & Miller’s Federal

Practice & Procedure § 2382 (3d ed. 2008)). Consolidation also does not “deprive any party of

any substantial rights which he may have possessed had the actions proceeded separately.” Id.

(quoting 3 Moore’s Federal Practice § 42.01 (1938)).

These principles are largely determinative of President Trump’s stay requests. Though the

court has treated these matters as a single cause for efficiency and administration, they are in fact

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eight separate cases. In six of them—Swalwell, 2 Blassingame, Moore, Tabron, Kirkland, and

Garza—President Trump is the sole named defendant. In one matter—Lee—he is one of five

remaining defendants. In Smith, President Trump is one of many defendants. Having retained his

substantial rights in each case, the consequence of President Trump’s interlocutory appeals—

plural, because he has taken one in each matter, see e.g., Notice of Appeal, ECF No. 220—must

be determined on a case-by-case basis. Cf. Hall, 584 U.S. at 77 (holding that consolidated cases

“retain their separate identities at least to the extent that a final decision in one is immediately

appealable by the losing party”). 3 The immunity from suit that President Trump invokes is thus

case specific. And because official-acts immunity is “an entitlement not to stand trial or face the

other burdens of litigation,” Blassingame, 87 F.4th at 29 (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)), in those cases in which he is the sole defendant, the court must stay the

proceedings in their entirety while he attempts to vindicate that right on appeal. To do otherwise

would mean the immunity from suit “is effectively lost if a case is erroneously permitted to go to

trial” or, as more pertinent here, wrongly allowed to continue with pretrial matters. See Mitchell,

472 U.S. at 526. All proceedings therefore will be stayed in Swalwell, Blassingame, Moore,

Tabron, Kirkland, and Garza.

III.

That leaves Lee and Smith. Both cases include defendants other than President Trump.

The court starts with Smith.

2

Plaintiff Swalwell originally named three other defendants—Rudolph Giuliani, Donald Trump, Jr., and Congressman

Mo Brooks—but the court dismissed them from the case. See Thompson v. Trump, 590 F. Supp. 3d 46, 105–07, 118,

125–26 (D.D.C. 2022); Order, Swalwell v. Trump, No. 21-cv-586-APM (D.D.C.), ECF No. 59. The Lee Plaintiffs

also named Giuliani as a defendant, and the court dismissed the claims against him in that case, too. See Thompson,

590 F. Supp. 3d at 68.

3

Admittedly, Hall involved an appeal in a consolidated case from a final judgment, but the court does not see why

the rule should differ when, as here, a defendant has an immediate right to interlocutory review of an immunity

determination.

3

A.

1.

Smith is the largest of these consolidated cases. It involves seven Plaintiffs and over a

dozen remaining defendants in addition to President Trump. 4 After the court denied the various

motions to dismiss, merits discovery in Smith commenced except with respect to President Trump,

as to whom the court stayed discovery pending interlocutory review. Order, Smith v. Trump, No.

21-cv-2265-APM (D.D.C. Jan. 26, 2023) [hereinafter Smith Docket], ECF No. 180 [hereinafter

Stay Order]. President Trump did not object to proceeding in that fashion. 5 Ever since, the parties

in Smith, including President Trump’s 2020 campaign-related entities (“Campaign Defendants”),

have engaged in mostly written discovery (including requests for documents) among themselves

and with third parties. See, e.g., Joint Case Status Reports, Smith Docket, ECF Nos. 472, 483, 496,

499. This discovery even occurred in parallel with post-remand immunity discovery.6

President Trump never asked for ongoing merits discovery to cease. 7

President Trump now insists that his second interlocutory appeal requires that the

Smith proceedings be stayed in their entirety. See generally Trump Mot., Def. Trump’s Mem. of

L. in Supp. of Trump’s Mot., ECF No. 226-1 [hereinafter Trump Mem.], at 1–7. That assertion is

4

The court dismissed three named defendants (Ali Alexander, Brandon Straka, and Roger Stone). See Mem. Op. &

Order, Smith Docket, ECF No. 179; Order, Smith Docket, ECF No. 256. Plaintiffs settled with three more (Russell

Taylor, Ronald Mele, and Alan Hostetter). See Joint Stipulations of Dismissal, ECF Nos. 304, 465, 478. And some

have not appeared (Stop the Steal, L.L.C.; Proud Boys; Proud Boys International, L.L.C.; Charles Donohoe;

Oath Keepers; and Jessica Watkins).

5

In Smith, President Trump moved to stay the proceedings in their entirety until the court resolved his motion to

dismiss, see Trump Defs.’ Mem. in Supp. of Mot. for Protective Order Regarding Premature Discovery Requests,

Smith Docket, ECF No. 170, but he did not file a similar motion after the court denied the motion to dismiss and he

sought interlocutory review, see Notice of Appeal, Smith Docket, ECF No. 181; Order, Smith Docket, ECF No. 188

(setting initial scheduling conference); Scheduling Order, Smith Docket, ECF No. 213 (setting a discovery schedule).

6

The D.C. Circuit instructed that, on remand, President Trump could take immunity-related discovery if he wished

and had the right to have the immunity issue resolved on summary judgment. See Blassingame, 87 F.4th at 29–30.

President Trump opted to take immunity discovery, and it commenced on April 29, 2024, see Order, Smith Docket,

ECF No. 292, and ended on December 5, 2024, see Hr’g Tr., 12/6/24, ECF No. 138, at 3:18-20.

7

One caveat: President Trump did ask for a stay until resolution of his criminal case. See Def. Trump’s Mot. for Stay,

ECF No. 90. The court denied that request. See Mem. Op. & Order, ECF No. 106.

4

based on the jurisdictional principle in Griggs v. Provident Consumer Discount Co. that “[t]he

filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the

court of appeals and divests the district court of its control over those aspects of the case involved

in the appeal.” 459 U.S. 56, 58 (1982); Trump Mem. at 1; see also U.S. Mot. at 5. President

Trump acknowledges that, strictly speaking, “those aspects of the case” on interlocutory appeal

concern only his claim to official-acts immunity. See Trump Mem. at 3–4. He nevertheless

contends that the stay must go further and reach the proceedings as a whole because the

Section 1985(1) conspiracy claim against him is “inextricably intertwined with [Plaintiffs’] claims

against the other defendants” and “cannot be distinguished or separated from the claims against

the other defendants.” Id. at 4–5. To allow discovery to proceed even as to others would put him

to an “untenable” choice: “choose between abstaining from discovery—and risking prejudice” or

“forsake the protection of absolute immunity to preserve his interests.” Id. at 4. He thus urges

that the ongoing merits discovery, which has proceeded for years without his participation or

objection, must now come to a grinding halt.

2.

One aspect of President Trump’s stay request in Smith is easily resolved: discovery shall

remain paused as to him. Merits discovery as to him surely would involve “aspects of the case

involved in the appeal.” The conduct underlying both Plaintiffs’ claims and the official-acts

immunity question is largely one and the same. Cf. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

(“Until this threshold [qualified] immunity question is resolved, discovery should not be

allowed.”); Behrens v. Pelletier, 516 U.S. 299, 309–11 (1996) (holding that denials of qualified

immunity are immediately appealable at both the motion to dismiss and summary judgment

stages); United States v. Trump, 706 F. Supp. 3d 91, 93–94 (D.D.C. 2023) (largely staying

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proceedings during interlocutory review of ruling denying absolute immunity against prosecution).

Griggs therefore mandates a stay of discovery as to him.

But Griggs does not compel a broader stay. There are many aspects of Smith that are not

involved in the appeal. Take three examples. There is a pending privilege dispute between the

Smith Plaintiffs and Campaign Defendants over hundreds of campaign-related communications.

See Campaign Defs.’ Mot. to Sustain Asserted Privileges, Smith Docket, ECF No. 418. Defendants

Nordean and Biggs have asked the court to lift the defaults entered against them. See Defs.’ Mot.

to Set Aside (or, Alternatively, Alter or Amend) the Default J., Smith Docket, ECF No. 479.

And Plaintiffs’ efforts to secure documents from third parties continues here and in other courts.

See Joint Status Report, Smith Docket, ECF No. 499, at 8–9 (describing the status of enforcement

actions against four third parties and discussions with the National Archives and Records

Administration over executive privilege assertions). None of these matters bear even remotely on

official-acts immunity. Furthermore, President Trump has not articulated how his defense would

be compromised if these and similar matters were allowed to proceed. He did not make that case

before, and he has not made it now. Griggs therefore does not require the court to stay all

proceedings in Smith.

Neither of the two Supreme Court cases on which President Trump primarily relies—

Coinbase, Inc. v. Bielski and Ashcroft v. Iqbal—compels a different result. In Coinbase, the Court

held that a district court must stay its proceedings during appellate review of a ruling denying a

motion to compel arbitration. 599 U.S. 736, 740 (2023). Because “the entire case is essentially

‘involved in the appeal,’” the Court reasoned, trial court proceedings must cease until the

arbitrability question is resolved. Id. at 741 (quoting Griggs, 459 U.S. at 58). But here, as

discussed, the “entire case” is not involved in the appeal. There are readily segregable portions

6

that can move forward without subjecting President Trump to the burdens of suit. The court has

proceeded in that way to date, and President Trump offers no reason to think that approach cannot

continue.

As for Ashcroft, President Trump relies on a passage in which the Court explains why the

prospect of “careful case management” in cases involving qualified immunity does not justify

relaxing Rule 8’s pleading requirements. 556 U.S. 662, 684–85 (2009). The Court wrote:

It is no answer to these concerns to say that discovery for petitioners

[asserting qualified immunity] can be deferred while pretrial

proceedings continue for other defendants. It is quite likely that,

when discovery as to the other parties proceeds, it would prove

necessary for petitioners and their counsel to participate in the

process to ensure the case does not develop in a misleading or

slanted way that causes prejudice to their position. Even if

petitioners are not yet themselves subject to discovery orders, then,

they would not be free from the burdens of discovery.

Id. at 685–86. Put more simply, the promise of “minimally intrusive discovery” is not a valid

reason to relax pleading requirements in a case involving government officials. See id. at 686.

Ashcroft is inapposite. This case is beyond the pleadings stage, so the Court’s reasoning does not

apply. And in any event, the Court in Ashcroft did not say that, in every case where a government

official is denied immunity, the trial court must stay all proceedings as to all other defendants while

that ruling undergoes interlocutory review. To be sure, there are undoubtedly cases where a

complete stay would be necessary to preserve an official’s right to avoid the burdens of discovery

and safeguard his defense. But Smith is not one of them.

3.

President Trump also advances a different rationale for a complete stay. He argues that,

even if Griggs does not apply, the court should exercise its discretion to pause all proceedings.

Trump Mem. at 7–10. Here, he invokes the familiar four factors courts assess when deciding

7

whether to stay a decision pending an appeal: the movant must (1) make a strong showing of

likelihood of success on the merits; (2) show that irreparable harm will occur absent a stay;

(3) establish that a stay will not substantially injure others; and (4) demonstrate that a stay is in the

public interest. See Nken v. Holder, 556 U.S. 418, 434 (2009); see also Wash. Metro. Area Transit

Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 842–43 (D.C. Cir. 1977). He argues that every factor

favors a complete stay. Trump Mem. at 9–10. The court disagrees.

Starting with the likelihood of success, a movant need only put forward a “serious legal

question[].” Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986). President

Trump claims he satisfies this first factor because his “appeal raises a fundamental constitutional

question going to the heart of Article II Section 3 of the United States Constitution and implicates

the separation of powers between the Executive and the Judiciary.” Trump Mem. at 9. Fair

enough. But President Trump puts forth no effort to show how or why the court erred in addressing

that question. See id.; Reply in Supp. of Trump Mot., ECF No. 237, at 7. The court made dozens

of fact-bound rulings about dozens of acts, yet he does not identify even one with which he takes

issue. Perhaps he takes issue with them all. But he has not made any showing, let alone a “strong”

one, that he is likely to succeed in whole or in part.

Nor has he established irreparable harm. Merits discovery against other defendants and

third parties has been ongoing since the court denied the motion to dismiss. Yet only now, for the

first time, does President Trump claim that he would be irreparably harmed absent a complete stay.

His decision not to seek a similar stay years ago undercuts his present claim of irreparable harm.

To be fair, the discovery to date has been mostly written and thus rarely directly objectionable by

him. But even if Plaintiffs were to begin taking depositions, nothing prevents President Trump

from seeking a protective order if he believes his substantial rights would be impaired by any

8

particular deposition. 8 True, he would have to expend legal fees for his counsel to monitor

discovery and seek protective orders when appropriate. But such burden would be minimal, and

in no event will he be subject to the type of “broad-reaching” discovery that would compromise

the protections of official-acts immunity. See Crawford-El v. Britton, 523 U.S. 574, 593 n.14

(1998) (“Discovery involving public officials is indeed one of the evils that Harlow aimed to

address, but neither that opinion nor subsequent decisions create an immunity from all discovery.

Harlow sought to protect officials from the costs of ‘broad-reaching’ discovery . . . .” (quoting

Harlow, 457 U.S. at 818)); Mitchell, 472 U.S. at 526 (“Harlow thus recognized an entitlement not

to stand trial or face the other burdens of litigation . . . .”); cf. Clinton v. Jones, 520 U.S. 681, 702

(1997) (“[P]etitioner errs by presuming that interactions between the Judicial Branch and the

Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally

forbidden impairment of the Executive’s ability to perform its constitutionally mandated

functions.”). And, of course, if the case is remanded for merits discovery, President Trump would

have the right to reopen any previously taken deposition.

The Smith Plaintiffs, on the other hand, would be injured by a complete stay. For one, all

discovery would come to a standstill for an indefinite period. That would include any outstanding

written discovery requests to other defendants; efforts to collect evidence from third parties; and

pending discovery disputes. Further, the events of January 6th are now over five years old. There

is a genuine risk that, with extended delay, witnesses’ memories will fade or witnesses will be

unavailable or more difficult to track down. The court cannot say that such prejudice is inevitable,

but President Trump has offered no reason to allay the concern.

8

The Smith Plaintiffs’ theory of conspiracy rests on few ties between President Trump and his alleged co-conspirators.

See Thompson, 590 F. Supp. 3d at 101–05. Therefore, there are many potential witnesses whom President Trump has

little or no reason to depose.

9

Finally, the public interest here is in equipoise. The public has an interest in ensuring that

President Trump’s official-acts immunity protections are not trampled upon before final resolution,

but it also has an interest in seeing this case of national importance move forward. The public

interest therefore does not tip either side of the scale.

In short, President Trump has not shown that the four stay factors weigh in favor of a stay

of all proceedings in Smith.

B.

The court next turns to Lee. According to the Lee Plaintiffs, “[t]he scope of [their] action

is considerably narrower than the Smith case,” and accordingly, they “do not anticipate conducting

discovery nearly as extensive as proposed in the Smith case.” Joint Discovery Plan, ECF No. 230

[hereinafter Discovery Plan], at 4; compare Am. Compl., ECF No. 11-1, ¶¶ 259–267 (alleging one

conspiracy), with Am. Compl., Smith Docket, ECF No. 89, ¶ 170 (alleging nine sub-conspiracies).

Whereas the Smith Plaintiffs have proposed a discovery schedule that would extend to late October

2027, Discovery Plan at 3, the Lee Plaintiffs believe they can complete discovery in 180 days, id.

at 4. The Lee Plaintiffs expect that they will not need to exceed the limitations placed on discovery

by the Federal Rules of Civil Procedure, while the Smith Plaintiffs “anticipate needing to take

approximately 100 depositions.” Id. And finally, unlike the numerous active defendants already

involved in merits discovery in Smith, there remains only one other active defendant in Lee:

Enrique Tarrio. 9

9

In addition to President Trump, the Lee Plaintiffs named three organizational defendants and two individuals,

Giuliani and Tarrio. See Am. Compl. The three organizational defendants are the Oath Keepers; Proud Boys

International, L.L.C.; and Warboys LLC. See Thompson, 590 F. Supp. 3d at 68. The latter two never appeared.

See id. Oath Keepers initially did so and participated in the motion to dismiss phase, but its counsel eventually

withdrew, see Minute Order, July 14, 2022, and no counsel has since entered an appearance. As a corporate entity,

Oath Keepers cannot proceed without licensed counsel. See Am. Airways Charters, Inc. v. Regan, 746 F.2d 865, 873

n.14 (D.C. Cir. 1984). The court dismissed Giuliani from the case, see Thompson, 590 F. Supp. 3d at 105–06, leaving

only Tarrio.

10

These differences are meaningful and, under Griggs, require a complete stay of Lee.

Because of its far narrower scope, substantial aspects of Lee are likely to be “involved in the

appeal.” Griggs, 459 U.S. at 58. A greater proportion of the discovery in Lee is likely to focus on

President Trump’s acts. The court can easily imagine that of the no more than 10 witnesses the

Lee Plaintiffs will seek to depose, most will be asked questions about President Trump’s actions

leading up to and on January 6th. That testimony will both touch on acts that he contends are

immune from suit and impact his defense on the merits. Also, the witness-by-witness approach

that the court believes is manageable in Smith likely will not be in Lee. Motions from

President Trump asking to stay depositions in Lee are likely to be the rule rather than the exception.

In short, the limited discovery that is likely to take place in Lee cannot be reasonably disentangled

from President Trump’s asserted immunity from suit without risking its purpose. Lee therefore

shall be stayed in its entirety pending appeal.

IV.

Last, the court addresses the United States’ motion. Plaintiffs assert that the United States

lacks “standing” to request a stay because it is not a party to this action. Pls.’ Opp’n at 15. That

cannot be right. Just because the court rejected its substitution request under the Westfall Act does

not mean that it lacks standing to seek whatever ancillary relief it believes it needs to preserve its

claimed party status. The two cases on which Plaintiffs rely are inapposite, as neither involves an

appeal from an adverse Westfall Act determination. See id. (first citing White v. Mapco Gas Prods.,

Inc., 116 F.R.D. 498, 500–01 (E.D. Ark. 1987); then citing Cribb v. BR Mountain Homes, LLC,

No. 17-cv-61, 2017 WL 10574071, at *2 (N.D. Ga. Aug. 3, 2017)).

Still, the court denies the United States’ motion in Smith for the same reasons articulated

above, as well as one more: the United States cannot establish irreparable harm. The United States

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will not be a party that takes discovery in Smith. At present, it is not a party because the court

struck its Westfall Act certification. And, even if the D.C. Circuit were to reverse that decision,

substituting the United States for President Trump would result in dismissal of the District of

Columbia law claims because no Plaintiff has filed the required notice under the Federal Tort

Claims Act. See Lee v. Trump, No. 21-cv-400, 2026 WL 880161, at *1 (D.D.C. Mar. 31, 2026).

And the United States cannot substitute for the Section 1985(1) claims. See 28 U.S.C.

§ 2679(b)(2)(B). So, under either outcome on appeal, the United States will not take discovery as

a party in Smith. The United States therefore cannot be irreparably harmed absent a stay.

V.

For the foregoing reasons, the motions to stay are granted in all cases except Smith, and

discovery shall remain stayed as to President Trump in Smith. The case may otherwise proceed.

President Trump and the United States asked for a stay of this ruling if the court denied the

stay requests in any respect. Tr. of Hr’g on Mot. to Stay Proceedings (draft), May 21, 2026, at

46:18-22, 47:17-18. That request is denied. The court sees no reason to pause discovery in Smith

given that President Trump is exempt from it and his interests are not likely to be impaired by the

discovery the court will permit.

Dated: June 4, 2026 Amit P. Mehta

United States District Judge

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