Emergency Application — Donald J. Trump, Applicant v. New York, et al.

Supreme Court briefJan 8, 2025

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No. _____

In the Supreme Court of the United States

PRESIDENT DONALD J. TRUMP,

Applicant,

PEOPLE OF THE STATE OF NEW YORK BY ALVIN L. BRAGG, JR., AND ACTING JUSTICE JUAN M.

MERCHAN, A.J.S.C., OF THE SUPREME COURT OF NEW YORK COUNTY, NEW YORK,

Respondents.

On Application for Stay of Criminal Proceedings in the Supreme Court of New York

County, New York, Pending the Resolution of President Trump’s Interlocutory Appeal

on Presidential Immunity

APPLICATION FOR A STAY OF CRIMINAL PROCEEDINGS IN THE

SUPREME COURT OF NEW YORK COUNTY, NEW YORK, PENDING THE

RESOLUTION OF PRESIDENT TRUMP’S INTERLOCUTORY APPEAL ON

PRESIDENTIAL IMMUNITY

BLANCHE LAW

Todd Blanche

Emil Bove

99 Wall St., Suite 4460

New York, NY 10005

(212) 716-1250

toddblanche@blanchelaw.com

JAMES OTIS LAW GROUP, LLC

D. John Sauer

Counsel of Record

William O. Scharf

Michael E. Talent

Kenneth C. Capps

13321 N. Outer Forty Rd.

Suite 300

St. Louis, Missouri 63017

(314) 562-0031

John.Sauer@james-otis.com

QUESTIONS PRESENTED

The questions presented are:

Whether President Trump is entitled to an automatic stay of criminal

proceedings against him in state court while his claims of Presidential

immunity from criminal prosecution are addressed on interlocutory appeal

to New York’s appellate courts and, if necessary, this Court.

II.

Whether the trial court’s admission and use of evidence of President

Trump’s official acts in a state-court jury trial on criminal charges violated

the doctrine of Presidential immunity recognized in Trump v. United

States, 603 U.S. 593 (2024).

III.

Whether a sitting President’s complete immunity from criminal prosecution

during his term in office extends to the President-Elect of the United States

during the brief but crucial period between his election, his certification as

the President-elect, which has now occurred, and his inauguration, as he

conducts

Presidential

transition

activities

that

are

integral

and

preparatory to his imminent assumption of the Executive power of the

United States.

PARTIES TO THE PROCEEDING

The applicant is President Donald J. Trump (“President Trump”).

The respondents are the People of the State of New York by District Attorney

of New York County Alvin L. Bragg, Jr. (“District Attorney”), and Acting Justice Juan

M. Merchan, A.J.S.C., of the Supreme Court of New York County, New York (“Justice

Merchan,” or “the trial court”).

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF AUTHORITIES .......................................................................................... v

INTRODUCTION .......................................................................................................... 1

STATEMENT ................................................................................................................. 2

I. The Trial Court Erroneously Admitted Extensive Evidence of President

Trump’s Immune Official Acts in a Criminal State-Court Jury Trial. ............. 2

II. The Trial Court Wrongly Refused to Recognize the Immunity from

Prosecution of the President-Elect During the Period of Presidential

Transition. ........................................................................................................... 6

III.The New York Courts Erred in Refusing to Stay Criminal Proceedings in the

Trial Court Pending the Resolution of President Trump’s Interlocutory

Appeal on Presidential Immunity. ..................................................................... 8

ARGUMENT .................................................................................................................. 9

I. There Is a Reasonable Probability That This Court Will Grant Certiorari. .. 10

A. The New York Courts Contradicted This Court’s Precedent and That of

Other Courts by Denying a Stay of Criminal Proceedings Pending the

Resolution of President Trump’s Interlocutory Appeal on Immunity. ...... 11

B. The Official-Acts Holding Contradicts This Court’s Precedent. ................ 19

1. Evidence of President Trump’s public statements to the American

people through official White House channels. ..................................... 20

2. Evidence of confidential communications with senior White House

advisors in their official capacity. .......................................................... 22

3. Evidence regarding President Trump’s exercise of core executive

powers, including the investigative and Pardon powers. ..................... 24

4. Evidence of the submission of government forms required by the

President’s official role as Chief Executive. .......................................... 26

iii

C. The New York Court’s Denial of Immunity to the President-Elect

Commits a Grave Error on an Important Question of Federal Law. ........ 28

II. There Is a Significant Possibility of Reversal. ................................................. 36

III.There Is a Likelihood of Irreparable Harm Absent the Stay. ......................... 37

IV. The Balancing of Equities Strongly Favors a Stay.......................................... 39

CONCLUSION............................................................................................................. 40

APPENDIX

TABLE OF AUTHORITIES

Cases

Pages(s)

Apostol v. Gallion,

870 F.2d 1335 (7th Cir. 1989) ................................................................................ 13

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................................................................ 38

Behrens v. Pelletier,

516 U.S. 299 (1996) ................................................................................................ 38

Blassingame v. Trump,

87 F.4th 1 (D.C. Cir. 2023) ................................................................................ 18-19

Bradford-Scott Data Corp. v. Physician Computer Network, Inc.,

128 F.3d 504 (7th Cir. 1997) .................................................................................. 16

Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas,

448 U.S. 1327 (1980) .............................................................................................. 10

Cheney v. U.S. Dist. Ct.,

542 U.S. 367 (2004) ................................................................................................ 24

Chuman v. Wright,

960 F.2d 104 (9th Cir. 1992) .................................................................................. 13

Clinton v. Jones,

520 U.S. 681 (1997) ................................................................................................ 21

Coinbase, Inc. v. Bielski,

599 U.S. 736 (2023) ........................................................................................... 16-17

Council on Am. Islamic Relations v. Ballenger,

444 F.3d 659 (D.C. Cir. 2006) ................................................................................ 21

Dow v. Tomei,

107 A.D.3d 986 (2d Dep’t 2013) ............................................................................. 17

Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota,

232 U.S. 516 (1914) ................................................................................................ 29

Gorghan v. DeAngelis,

25 A.D.3d 872 (3d Dep’t 2006) ............................................................................... 17

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................................................................................ 37

James N. v. D’Amico,

139 A.D.2d 302 (4th Dep’t 1988) ............................................................................ 17

Johnson v. Fankell,

520 U.S. 911 (1997) ................................................................................................ 17

Karcher v. Daggett,

455 U.S. 1303 (1982) .................................................................................. 10, 37, 39

Kisloff v. Covington,

73 N.Y.2d 445 (1989) .............................................................................................. 17

Lacerva v. Dwyer,

177 A.D.2d 747 (3d Dep’t 1991) ............................................................................. 17

Lindke v. Freed,

601 U.S. 187 (2024) ................................................................................................ 22

McCulloch v. Maryland,

17 U.S. (4 Wheat) 316 (1819) ................................................................................. 29

McLaughlin v. Eidens,

292 A.D.2d 712 (3d Dep’t 2002) ............................................................................. 17

McLeod v. Gen. Elec. Co.,

87 S. Ct. 5 (1966) .................................................................................................... 10

Mitchell v. Forsyth,

472 U.S. 511 (1985) ............................................................................... 12-14, 18, 37

Nebraska Press Association v. Stuart,

423 U.S. 1319 (1975) ................................................................................................ 9

Nebraska Press Association v. Stuart,

423 U.S. 1327 (1975) ................................................................................................ 9

Nixon v. Fitzgerald,

457 U.S. 731 (1982) .................................................................................... 13, 15, 23

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................................................................ 37

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139 (1993) ................................................................................................ 38

Rush v. Mordue,

68 N.Y.2d 348 (1986) .............................................................................................. 17

Shiffman v. Selective Serv. Bd. No.5,

88 S. Ct. 1831 (1968) .............................................................................................. 10

Times-Picayune Publ’g Corp. v. Schulingkamp,

419 U.S. 1301 (1974) ................................................................................................ 9

Trump v. Hawaii,

585 U.S. 667 (2018) ................................................................................................ 20

Trump v. Mazars USA, LLP,

591 U.S. 848 (2020) ................................................................................................ 26

Trump v. United States,

603 U.S. 593 (2024) ............................................. 5-7, 11-15, 17-20, 22-28, 34, 39-40

Trump v. Vance,

591 U.S. 786 (2020) .................................................................................... 17, 24, 29

United States v. Texas,

144 S. Ct. 797 (2024) ................................................................................................ 2

United States v. Trump,

No. CR 23-257 (TSC), 2023 WL 8615775 (D.D.C. Dec. 13, 2023) ......................... 11

Van Wie v. Kirk,

244 A.D.2d 13 (4th Dep’t 1998) .............................................................................. 17

Volkswagenwerk A.G. v. Falzon,

461 U.S. 1303 (1983) ................................................................................................ 9

Whalen v. Roe,

423 U.S. 1313 (1975) .............................................................................................. 10

vii

White v. Florida,

458 U.S. 1301 (1982) .......................................................................................... 9, 36

Statutory and Regulatory Authorities

3 U.S.C. § 102 note............................................................................................. 7, 30, 33

5 C.F.R. § 2634.104(a).................................................................................................. 27

N.Y. C.P.L.R. § 7805 .................................................................................................... 17

Sup. Ct. R. 10(c) ........................................................................................................... 11

Other Authorities

3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 1563 (1st

ed. 1833) ............................................................................................................ 28

A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 U.S.

Op. O.L.C. 222 (2000), 2000 WL 33711291 .......................... 28-29, 31-34, 36, 38

Center for Presidential Transition, Presidential Transitions Are a Perilous Moment

for National Security, https://presidentialtransition.org/reportspublications/presidential-transitions-are-a-perilous-moment-for-nationalsecurity/ ............................................................................................................. 33

Henry B. Hogue, Cong. Research Serv., R46602, Presidential Transition Act:

Provisions and Funding (2024) ........................................................................ 33

Joshua P. Zoffer, The Law of Presidential Transitions, 129 Yale L. J. 2500 (2020) . 31

L. CARROLL, ALICE’S ADVENTURES IN WONDERLAND (1865) ........................................ 19

Letter of Transmittal from the President of the United States to the President of the

Senate and the Speaker of the House of Representatives (May 29, 1962),

reprinted in H.R. Rep. No. 88-301 (1963) ........................................................ 31

Reimbursing Transition-Related Expenses Incurred Before The Administrator Of

General Services Ascertained Who Were The Apparent Successful Candidates

For The Office Of President And Vice President, 25 U.S. Op. O.L.C. 7 (2001),

2001 WL 34058234 ....................................................................................... 30-31

THE FEDERALIST NO. 70 ............................................................................................... 19

viii

U.S. General Services Administration, Presidential Transition Directory, at

https://www.gsa.gov/governmentwide-initiatives/presidential-transition2024/ethics-and-accountability ......................................................................... 32

INTRODUCTION

This application requests an emergency stay to prevent further criminal

proceedings in New York state court—including a sentencing hearing scheduled for

Friday, January 10, at 9:30 a.m.—against the President-Elect of the United States at

the apex of his Presidential transition, and after his electoral win his been certified

by a joint session of both houses of Congress, while he pursues a meritorious

interlocutory appeal raising claims of Presidential immunity. On Friday, January 3,

2025, the Supreme Court of New York County wrongly denied President Trump’s

pending motion to dismiss the criminal case based on Presidential immunity and,

contrary to accepted practice, New York Law, and due process, abruptly set the

matter for criminal sentencing less than a week later. President Trump promptly

filed an interlocutory appeal and notified the trial court that it is subject to an

automatic stay, but the New York courts have erroneously refused to honor that stay.

This Court should enter an immediate stay of further proceedings in the New

York trial court to prevent grave injustice and harm to the institution of the

Presidency and the operations of the federal government. The commencement of

President Trump’s interlocutory appeal raising claims of Presidential immunity

causes an automatic stay of proceedings in the trial court under Trump v. United

States, 603 U.S. 593 (2024) (“Trump”), and related case law.

This appeal will

ultimately result in the dismissal of the District Attorney’s politically motivated

prosecution that was flawed from the very beginning, centered around the wrongful

actions and false claims of a disgraced, disbarred serial-liar former attorney, violated

President Trump’s due process rights, and had no merit. In the meantime, the New

York trial court lacks authority to impose sentence and judgment on President

Trump—or conduct any further criminal proceedings against him—until the

resolution of his underlying appeal raising substantial claims of Presidential

immunity, including by review in this Court if necessary.

As discussed herein, this Court should order an immediate stay of criminal

proceedings against President Trump in the New York trial court, including but not

limited to the criminal sentencing hearing scheduled for January 10, 2025, at 9:30

a.m. If necessary, the Court should also enter a temporary administrative stay of

those proceedings while it considers this stay application. See, e.g., United States v.

Texas, 144 S. Ct. 797, 798 (2024) (Barrett, J., concurring in denial of applications to

vacate stay) (“After receiving an emergency application, this Court frequently issues

an administrative stay to permit time for briefing and deliberation.”).

STATEMENT

The Trial Court Erroneously Admitted Extensive Evidence of

President Trump’s Immune Official Acts in a Criminal State-Court

Jury Trial.

On March 30, 2023, President Trump was indicted in the Supreme Court of

New York on 34 counts of supposedly falsifying business records in violation of New

York law. The meritless case was tried before a Manhattan jury beginning on April

15, 2024. On February 22, 2024, the District Attorney provided a disclosure of

anticipated trial evidence.

App’x 5A-57A.

This disclosure included evidence of

President Trump’s official acts performed while he was in office as President of the

United States. On March 7, 2024, President Trump moved to exclude evidence of

those Presidential official acts at trial, on the ground of Presidential immunity. App’x

58A.

In his motion, President Trump specifically challenged admissibility of several

portions of proposed evidence that were based on official acts of the President shielded

by Presidential immunity. These included, without limitation, statements issued

through his official Presidential Twitter account to the American people in 2018,

statements to the press in official Presidential media appearances, documentary

evidence reflecting official Presidential actions, and testimony of former White House

employees regarding official actions taken by President Trump during his first term

as President. App’x 62A-63A.

The trial court wrongly denied President Trump’s motion on April 3, 2024,

citing supposed timeliness issues. App’x 89A. The trial court “decline[d] to consider”

whether Presidential immunity precludes evidence of President Trump’s official acts

at trial. App’x 89A. The trial court also rejected President Trump’s request to stay

the trial pending this Court’s decision on Presidential immunity in Trump v. United

States. On April 10, 2024, President Trump filed an interlocutory appeal in New

York’s Appellate Division seeking, inter alia, a writ of prohibition as to the trial

court’s April 3, 2024 Decision and Order. App’x 90A. This Petition was denied on

May 23, 2024, by which time trial was nearly concluded. App’x 157A. In denying the

Petition, the New York Appellate Division erroneously reasoned that President

Trump’s claims of Presidential immunity “may be raised in a direct appeal,” and thus

that the New York appellate courts need not address them before trial, App’x 157A—

a holding that this Court would soon squarely contradict.

On April 15, 2024, the first day of jury selection, the District Attorney made an

offer of proof involving official acts of President Trump while in office in 2018. App’x

446A-451A. In response, President Trump renewed his objection to use of such

evidence, asserting the doctrine of Presidential immunity, including referencing the

pending United States v. Trump case then in front of this Court. App’x 452A-454A.

Likewise, on April 15, 2024, President Trump submitted his objections to the trial

court, including objections to statements issued through his official Presidential

Twitter account to the American people in 2018, documentary evidence reflecting

official Presidential actions, and witness testimony regarding official actions taken

by President Trump during his first term in office. App’x 152A. On April 19, 2024,

Justice Merchan ruled that President Trump would have to wait until trial to make

such immunity objections, and that the court would not rule on such objections pretrial, but would address them if and when such objections would arise during trial

proceedings, App’x 455A—another holding that this Court would soon completely

contradict.

During trial, the District Attorney repeatedly offered evidence of President

Trump’s official acts. As discussed further below, this evidence included: (1) evidence

of President Trump’s Tweets on his official Twitter account communicating with the

American people about matters of public concern; (2) testimony from close,

confidential White House Advisors, such as White House Communications Director

Hope Hicks and Executive Assistant to the President Madeleine Westerhout, about

confidential internal discussions of White House communications strategy and about

the President’s conduct of official business on behalf of the United States; (3) evidence

regarding the President’s alleged involvement in federal investigations and

anticipated use of the Pardon power; and (4) evidence of the President’s submission

of information on official government forms required by law for his official position.

In addition to raising his objections in a pre-trial motion, a pre-trial

interlocutory appeal, and at the outset of trial, President Trump repeatedly renewed

his Presidential-immunity objections during trial.

See, e.g., App’x 456A-457A

(witness testimony of former White House employee’s official-capacity interactions

with then-President Trump and the press); App’x 479A (documentary evidence

reflecting official presidential actions)]. The trial court overruled these objections.

The trial concluded on May 30, 2024, with an adverse verdict on all 34 counts.

On July 1, 2024, this Court issued its decision in Trump v. United States, 603

U.S. 593 (2024) (“Trump”). This Court held that the President of the United States

has absolute immunity from criminal prosecution for exercising his core

constitutional powers and has at least “presumptive immunity” for other official

actions within the “outer perimeter” of his official responsibilities. Id. at 606, 618.

This Court further held that Presidential immunity protects against the evidentiary

use of official acts against a President in criminal proceedings, because Presidential

immunity prohibits a court or jury from “examin[ing] acts for which a President is

immune” “even on charges that purport to be based only on his unofficial conduct.”

Id. at 630-31. The Court also held that claims of Presidential immunity should not

be reserved for trial but “must be addressed at the outset of a proceeding.” Id. at 636.

On July 1, 2024, President Trump sought leave from the trial court to file a

motion to set aside the jury verdict based upon this Court’s decision in Trump v.

United States. On July 10, 2024, President Trump filed a Post-Trial Motion To

Dismiss Based on Presidential Immunity, seeking vacatur of the jury verdict and

dismissal of the case based on the misuse of official-acts evidence, both at trial and

before the grand jury. App’x 158A. President Trump’s motion challenged in detail

the erroneous admission of all the official-acts evidence cited above. App’x 186A212A.

On December 16, 2024, the trial court erroneously denied President Trump’s

motion to dismiss based on Presidential official-acts immunity. App’x 285A. The trial

court’s Decision and Order wrongly concluded that all the contested evidence at trial

“relate[d] entirely to unofficial conduct entitled to no immunity protections.” App’x

325A. That decision, among many others made by the trial court, was made in error

and, if allowed to stand, would gravely undermine the American Presidency as we

know it. See, e.g., Trump, 603 U.S. at 613-14.

II.

The Trial Court Wrongly Refused to Recognize the Immunity from

Prosecution of the President-Elect During the Period of

Presidential Transition.

Meanwhile, on November 5, 2024, President Trump was re-elected as the 47th

President of the United States in a historic landslide victory. Once President Trump

was re-elected, he became the President-Elect of the United States for the period

between November 5, 2024, and January 20, 2025.

See 3 U.S.C. § 102 note

(“Presidential Transition Act”).

On December 2, 2024, President Trump filed a motion to vacate the jury verdict

and dismiss the criminal case, based, inter alia, on the doctrine of sitting-President

immunity. App’x 213A. President Trump noted that, upon his inauguration as the

47th President of the United States on January 20, 2025, he will be completely

immune from all criminal process, state or federal. App’x 250A; see also Trump, 603

U.S. at 616 n.2 (“In the criminal context, . . . ‘the separation of powers precludes the

criminal prosecution of a sitting President.’”). President Trump also stated that the

doctrine of sitting-President immunity shields him from criminal process during the

brief but crucial period of Presidential transition, while he engages in the

extraordinarily demanding task of preparing to assume the Executive power of the

United States.

App’x 256A.

Accordingly, President Trump sought immediate

dismissal of the criminal case against him—consistent with the contemporaneous

voluntary dismissals filed by the federal Special Counsel’s Office.

On January 3, 2025, the trial court denied President Trump’s motion. App’x

343A. In the January 3, 2025 Decision and Order, the trial court acknowledged that

a sitting President is immune from federal prosecution, and it further acknowledged

that this immunity extends to state prosecution as well. App’x 330A (“[I]t is logical

to infer that the three concerns expressed in the 2000 OLC memorandum can overlap

with criminal prosecutions that occur in state court.”). But it erroneously concluded

that “Presidential immunity from criminal process for a sitting president does not

extend to a President-elect.” App’x 330A. The January 3, 2025, Decision and Order,

issued on a Friday afternoon, set President Trump’s criminal sentencing for 9:30 a.m.

one week later, on Friday, January 10, 2025—not only at the apex of the Presidential

Transition period, but even after President Trump’s electoral college victory has been

certified by Congress. App’x 343A.

III.

The New York Courts Erred in Refusing to Stay Criminal

Proceedings in the Trial Court Pending the Resolution of President

Trump’s Interlocutory Appeal on Presidential Immunity.

The trial court denied President Trump’s motion to dismiss based on

Presidential immunity in the late afternoon of Friday, January 3, 2025, and set the

case for criminal sentencing one week later, January 10, 2025—just ten days before

President Trump’s inauguration, and in violation of standard practice, due process,

and New York criminal law. App’x 343A. On Sunday, January 5, 2025, President

Trump notified the trial court and the District Attorney that he was pursuing an

immediate appeal of the trial court’s adverse rulings on Presidential immunity, and

provided his Notice that trial-court proceedings are automatically stayed pending

that interlocutory appeal. App’x 344A. In the alternative, President Trump asked

the trial court to impose a discretionary stay. App’x 344A. On Monday, January 6,

2025, President Trump filed an interlocutory appeal under N.Y. C.P.L.R. § 7801 et

seq. in the nature of a writ of prohibition in the New York Appellate Division, First

Department, seeking interlocutory review of the trial court’s erroneous denials of both

Presidential official-act immunity and sitting-President immunity. App’x 361A.

President Trump also sought an immediate stay of trial-court proceedings from

the New York Appellate Division. App’x 402A. On Tuesday, January 7, the Appellate

Division denied President Trump’s request for a stay. App’x 2A. Due to the timesensitivity of this matter, with sentencing currently scheduled for Friday, January

10, at 9:30 a.m., President Trump is now simultaneously filing an application for an

emergency stay to the New York Court of Appeals, and this stay application in this

Court. 1

ARGUMENT

“The standards for granting a stay of mandate pending disposition of a petition

for certiorari are well established.” White v. Florida, 458 U.S. 1301, 1302 (1982)

(Powell, J., in chambers). “[1] There must be a reasonable probability that four

members of the Court would consider the underlying issue sufficiently meritorious

for the grant of certiorari or the notation of probable jurisdiction; [2] there must be a

significant possibility of reversal of the lower court’s decision; and [3] there must be

a likelihood that irreparable harm will result if that decision is not stayed.” Id.

(quoting Times-Picayune Publ’g Corp. v. Schulingkamp, 419 U.S. 1301, 1305 (1974)

President Trump’s counsel have acted diligently to seek a stay from the trial court and the

intermediate New York appellate court. The shortness of time created by the trial court’s decision to

schedule a criminal sentencing hearing five business days after denying President Trump’s claim of

immunity constitutes “extraordinary circumstances” under this Court’s Rule 23.3. Though an

applicant is ordinarily required to seek relief from the state appellate courts first, this Court has

entertained simultaneous stay applications to this Court and the highest state appellate court when

the circumstances warranted it. See, e.g., Volkswagenwerk A.G. v. Falzon, 461 U.S. 1303 (1983)

(O’Connor, J., in chambers); Nebraska Press Association v. Stuart, 423 U.S. 1319 (1975) (Blackmun,

J., in chambers); Nebraska Press Association v. Stuart, 423 U.S. 1327 (1975) (Blackmun, J., in

chambers). Because it is highly questionable whether the New York Court of Appeals will act in the

next 48 hours, filing applications in both courts appears to be the only viable option. Counsel for

President Trump will promptly notify the Court and the parties in the event that the New York Court

of Appeals acts on his stay application in that court.

(Powell, J., in chambers)); accord Karcher v. Daggett, 455 U.S. 1303 (1982) (Brennan,

J., in chambers); Whalen v. Roe, 423 U.S. 1313, 1316-17 (1975) (Marshall, J., in

chambers).

In addition, “in a close case it may be appropriate to ‘balance the

equities’—to explore the relative harms to applicant and respondent, as well as the

interests of the public at large.” Karcher, 455 U.S. at 1305–06.

Further, a stay is more likely warranted where, as here, “[t]he underlying issue

in th[e] case … has not heretofore been passed upon by this Court and is of continuing

importance.” McLeod v. Gen. Elec. Co., 87 S. Ct. 5, 6 (1966) (Harlan, J.). Thus, “the

existence of an important question not previously passed on by this Court” is a factor

that weighs in favor of a stay. Shiffman v. Selective Serv. Bd. No.5, 88 S. Ct. 1831,

1832 n.3 (1968) (Douglas, J., dissenting); Certain Named and Unnamed Non-Citizen

Children and Their Parents v. Texas, 448 U.S. 1327, 1332 (1980) (Powell, J., in

chambers) (holding that a case that “presents novel and important issues” warrants

a stay). Where the appeal “raises a difficult question of constitutional significance”

that “also involves a pressing national problem,” a stay is warranted. Texas, 448 U.S.

at 1331.

There Is a Reasonable Probability That This Court Will Grant

Certiorari.

First, there is a reasonable probability that the Court will grant certiorari in

this case, because this case satisfies this Court’s traditional criteria for discretionary

review. Regarding the first two questions presented—(1) whether President Trump

is entitled to an automatic stay of trial-court proceedings pending interlocutory

appeal on Presidential immunity, and (2) whether the evidentiary use of President

Trump’s official acts violated the doctrine of Presidential immunity—the New York

courts have “decided an important federal question in a way that conflicts with

relevant decisions of this Court” and other federal courts. Sup. Ct. R. 10(c). On the

third question presented—(3) whether a sitting President’s immunity from criminal

process also shields a President-elect from criminal prosecution during the brief but

crucial period of Presidential transition—the New York courts have “decided an

important question of federal law that has not been, but should be, settled by this

Court.” Id. Indeed, these “underlying immunity question[s] . . . raise[] multiple

unprecedented and momentous questions about the powers of the President and the

limits of his authority under the Constitution.” Trump, 603 U.S. at 616.

A. The New York Courts Contradicted This Court’s Precedent and

That of Other Courts by Denying a Stay of Criminal Proceedings

Pending the Resolution of President Trump’s Interlocutory Appeal

on Immunity.

Before this Court’s decision in Trump, the U.S. District Court for the District

of Columbia held that “Defendant’s appeal [on Presidential immunity grounds]

automatically stays any further proceedings that would move this case towards trial

or impose additional burdens of litigation on Defendant.” United States v. Trump,

No. CR 23-257 (TSC), 2023 WL 8615775, at *1 (D.D.C. Dec. 13, 2023) (emphasis

added). This Court’s holding and reasoning in Trump resoundingly confirm the

correctness of that holding that a stay is mandated. Trump explicitly holds that a

claim of Presidential immunity is subject to interlocutory appeal before further

criminal proceedings may occur, and its logic dictates that this interlocutory appeal

must be accompanied by an automatic stay of trial-court proceedings while that

interlocutory appeal is adjudicated. See, e.g., 603 U.S. at 630, 635. The federal courts

honored this clear and compelling doctrine, but the New York courts are indefensibly

disregarding it.

In Trump, this Court emphasized that “[t]he essence of immunity ‘is its

possessor’s entitlement not to have to answer for his conduct’ in court.” Trump, 603

U.S. at 630 (quoting Mitchell v. Forsyth, 472 U.S. 511, 525 (1985)). Because “the

President is . . . immune from prosecution, a district court’s denial of immunity” must

be “appealable before trial.”

Id. at 635 (citing Mitchell, 472 U.S. at 524-30).

“[Q]uestions of immunity are reviewable before trial because the essence of immunity

is the entitlement not to be subject to suit.” Id. (emphasis added).

This Court explained that the criminal process’s extensive “safeguards, though

important, do not alleviate the need for pretrial review,” because “under our system

of separated powers, criminal prohibitions cannot apply to certain Presidential

conduct to begin with.... [W]hen the President acts pursuant to his exclusive

constitutional powers, Congress cannot—as a structural matter—regulate such

actions, and courts cannot review them.” Id. at 636 (emphasis added). That is

because “the interests that underlie Presidential immunity seek to protect not the

President himself, but the institution of the Presidency.” Id. at 632.

Accordingly, “[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,” which includes interlocutory review before further trial-court

proceedings on the merits. Id. at 636. “Even if the President were ultimately not

found liable for certain official actions, the possibility of an extended proceeding alone

may render him unduly cautious in the discharge of his official duties.” Id. (cleaned

up). “Vulnerability to the burden of a trial and to the inevitable danger of its outcome,

would dampen the ardor of all but the most resolute.” Id. (quotation marks omitted).

“The Constitution does not tolerate such impediments to ‘the effective functioning of

government,’” id. (quoting Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982))—and thus

the Constitution requires that appellate review of questions of Presidential immunity

be completed before further proceedings in the trial court. See id. at 635 (holding that

questions of Presidential immunity from criminal prosecution are “appealable before

trial” and “reviewable before trial because the essence of immunity is the entitlement

not to be subject to suit”).

This Court’s citation of Mitchell v. Forsyth reinforces this conclusion. Like

Trump itself, Mitchell effectively mandates an automatic stay of trial-court

proceedings while an immunity claim is reviewed on interlocutory appeal, and it is

widely cited for that proposition. See Mitchell, 472 U.S. at 525-26; see also, e.g.,

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989) (citing Mitchell to conclude that an

automatic stay applies in an immunity appeal); Chuman v. Wright, 960 F.2d 104,

104-05 (9th Cir. 1992) (same). Mitchell held that “the denial of a substantial claim of

absolute immunity is an order appealable before final judgment, for the essence of

absolute immunity is its possessor’s entitlement not to have to answer for his conduct

. . . .” Id. at 525. This requires a stay to protect officials from any burdens of litigation

while the question of immunity is under review on appeal, including preventing “the

general costs of subjecting officials to the risks of trial,” and protecting those officials

from “even such pretrial matters as discovery.” Id. at 525-56. Immunity, Mitchell

held, is “an entitlement not to stand trial or face the other burdens of litigation.” Id.

at 526. “The entitlement is an immunity from suit rather than a mere defense to

liability; and . . . it is effectively lost if a case is erroneously permitted to go to trial.”

Id. Immunity entails “an entitlement not to be forced to litigate the consequences of

official conduct,” id. at 527 (emphasis added), at any stage of criminal proceedings,

including sentencing, which may impose grave consequences. In fact, the prospect of

imposing sentence on President Trump just before he assumes Office as the 47th

President raises the specter of other possible restrictions on liberty, such as travel,

reporting requirements, registration, probationary requirements, and others—all of

which would be constitutionally intolerable under the doctrine of Presidential

immunity. Indeed, every adjudication of a felony conviction results in significant

collateral consequences for the defendant, regardless of whether a term of

imprisonment is imposed.

Furthermore, the trial court’s erroneous approach would deprive Presidential

immunity of its intended effect. As noted above, Trump held that “[t]he essence of

[Presidential] immunity ‘is its possessor’s entitlement not to have to answer for his

conduct’ in court.” Trump, 603 U.S. at 630 (quoting Mitchell, 472 U.S. at 525).

Forcing a President to continue to defend a criminal case—potentially through trial

or, even more dramatically here, through sentencing and judgment—while the

appellate courts are still grappling with his claim of immunity would, in fact, force

that President “to answer for his conduct in court” before his claim of immunity is

finally adjudicated. Id. Trump’s reference to “the threat of trial, judgment, and

imprisonment” mandate the conclusion that Presidential immunity violations cannot

be ignored in favor of a rushed pre-inauguration sentencing. Id. at 613 (emphasis

added). By insisting on holding a sentencing hearing of President Trump while his

interlocutory appeals on Presidential immunity are still pending, the New York

courts are doing exactly what this Court repeatedly warned against—they are

“depriving immunity of its intended effect.” Id. at 619.

The fact that President Trump asserts Presidential immunity against the

evidentiary use of his official acts puts the issue squarely within the purview of

Trump. Regarding the government’s unconstitutional demand to admit evidence of

official acts at trial—which underlies one of President Trump’s key enumerations of

error here—Trump held “[t]hat proposal threatens to eviscerate the immunity we

have recognized.” Id. at 631. “If official conduct for which the President is immune

may be scrutinized to help secure his conviction, even on charges that purport to be

based only on his unofficial conduct, the ‘intended effect’ of immunity would be

defeated.” Id. at 631 (quoting Fitzgerald, 457 U.S. at 756).

Moreover, the automatic stay that President Trump seeks here is a routine

feature of such interlocutory appeals, rendering the New York courts’ refusal to stay

proceedings all the more astonishing and unlawful. As this Court has held in a

related context, in such appeals, “whether ‘the litigation may go forward in the

district court is precisely what the court of appeals must decide.’” Coinbase, Inc. v.

Bielski, 599 U.S. 736, 741 (2023) (quoting Bradford-Scott Data Corp. v. Physician

Computer Network, Inc., 128 F.3d 504, 506 (7th Cir. 1997)). For this reason, “the

district court must stay its proceedings while [an] interlocutory appeal on

arbitrability is ongoing.” Id. (emphasis added). This logic applies with even greater

force to an interlocutory appeal on the far more momentous question of Presidential

immunity from criminal prosecution, which squarely included sentencing and all of

its momentous exigencies.

Indeed, the “common practice” of entering such automatic stays “reflects

common sense.” Id. at 743. “Absent an automatic stay of [trial] court proceedings,”

this Court’s “decision to afford a right to an interlocutory appeal would be largely

nullified.”

Id.

“If the [trial] court could move forward with pre-trial and trial

proceedings”—or worse, as here, criminal sentencing and judgment—while the

appeal was ongoing, “then many of the asserted benefits” of Presidential immunity

“would be irretrievably lost.” Id. at 742-43. “[C]ontinuation of proceedings in the

[trial] court ‘largely defeats the point of the appeal.’” Id. at 743 (quoting BradfordScott, 128 F.3d at 505). “A right to interlocutory appeal … without an automatic stay

of the district court proceedings is therefore like a lock without a key, a bat without

a ball, a computer without a keyboard—in other words, not especially sensible.” Id.

For the reasons discussed above, President Trump is entitled to both an

interlocutory appeal and an automatic stay pending interlocutory appeal as a matter

of federal constitutional law, which is binding on the New York courts under the

Supremacy Clause. 2 Notably, moreover, the stay President Trump seeks is also fully

consistent with ordinary New York law and practice. In fact, the “common practice”

of granting such stays, id., applies in New York criminal cases as well. New York

appellate courts routinely stay criminal proceedings in the trial court pending the

resolution of interlocutory appellate proceedings under New York’s Article 78—the

procedure employed by President Trump here—that challenge the authority of the

trial court to proceed. 3 It is, therefore, wrong, astonishing and improper that the New

2 These points distinguish this case from Johnson v. Fankell, 520 U.S. 911 (1997), which held that the

defense of qualified immunity derived from 42 U.S.C. § 1983 did not preempt State law barring

interlocutory appeals. See id. at 922–23. Not only do New York courts permit interlocutory appeals,

contra id. at 916–17 (noting the Idaho Supreme Court’s holding that State law did not permit the

appeal), the right of review and immediate stay are constitutionally mandated, see Trump, 603 U.S.

at 636, and protect not just President Trump’s individual federal rights but also “the constitutional

structure of separated power,” id. at 606, and “the independence of the Executive Branch” from state

interference, Trump v. Vance, 591 U.S. 786, 800 (2020). By contrast, the right to interlocutory appeal

from a denial of qualified immunity “is a federal procedural right,” Johnson, 520 U.S. at 921, and the

underlying substantive defense is an individual “federal right,” id. at 919, as opposed to a structural

component of the system of separated powers and federalism.

3 See N.Y. C.P.L.R. § 7805 (“On the motion of any party or on its own initiative, the court may stay

further proceedings, or the enforcement of any determination under review . . . .” (emphasis added));

see also, e.g., Kisloff v. Covington, 73 N.Y.2d 445, 448 (1989) (noting the Appellate Division stayed the

prosecution after the filing of an Article 78 petition “seeking to prohibit further prosecution”); Dow v.

Tomei, 107 A.D.3d 986, 987 (2d Dep’t 2013) (staying enforcement of order “compelling the petitioner

to appear in court for resentencing”); Gorghan v. DeAngelis, 25 A.D.3d 872, 872-73 (3d Dep’t 2006)

(“Thereafter, County Court ... summarily denied petitioner’s motion which sought an order prohibiting

retrial based on double jeopardy grounds and petitioner initiated this proceeding. By order of this

Court, all further proceedings in County Court have been stayed pending this decision.”);

McLaughlin v. Eidens, 292 A.D.2d 712, 713 (3d Dep’t 2002) (“By order of this Court, all proceedings

have been stayed” pending resolution of an Article 78 proceeding challenging the trial court’s authority

to proceed); Van Wie v. Kirk, 244 A.D.2d 13, 23 (4th Dep’t 1998) (“Upon filing the instant CPLR article

78 petition, petitioner obtained a stay of proceedings” preventing the criminal trial from proceeding);

Lacerva v. Dwyer, 177 A.D.2d 747, 748 (3d Dep’t 1991) (“Further proceedings were then stayed by the

court to permit preparation of this CPLR article 78 proceeding to prohibit retrial on the ground of

double jeopardy. This court stayed the criminal trial pending determination of this proceeding.”); see

also Rush v. Mordue, 68 N.Y.2d 348, 352 n.1 (1986) (noting the parties stipulated to a stay in the

underlying criminal case pending the outcome of the proceedings and appeal in the Court of Appeals);

James N. v. D’Amico, 139 A.D.2d 302, 309-10 (4th Dep’t 1988) (Boomer, J., concurring) (arguing that

stays should be issued under CPLR 7805 upon a “showing of probability of success on the merits of the

[Article 78] proceeding”).

York courts have denied to President Trump the basic procedural protection that it

routinely grants to other criminal defendants.

To be sure, President Trump raises, again, Presidential-immunity claims after

trial and before sentencing, because the two key developments on which they are

based—this Court’s decision in Trump, and President Trump’s re-election as the 47th

President of the United States—occurred after trial. But the fact that President

Trump is seeking interlocutory review of his claims of Presidential immunity before

sentencing does not undermine his entitlement to an automatic stay, if anything the

current posture and imminent sentencing heighten the need for a stay. As this Court

and others have emphasized, Presidential immunity protects the President from the

entire “suit,” not just certain procedural stages of the suit. “[Q]uestions of immunity

are reviewable before trial because the essence of immunity is the entitlement not to

be subject to suit.”

Trump, 603 U.S. at 635.

“The essence of immunity is its

possessor’s entitlement not to have to answer for his conduct in court.” Id. at 630.

“Official immunity, including the President’s official-act immunity, is ‘immunity from

suit rather than a mere defense to liability.’” Blassingame v. Trump, 87 F.4th 1, 29

(D.C. Cir. 2023) (emphasis added) (quoting Mitchell, 472 U.S. at 526). “It is ‘an

entitlement not to stand trial or face the other burdens of litigation.’” Id. (quoting

Mitchell, 472 U.S. at 526). “Those concerns are particularly pronounced when the

official claiming immunity from suit is the President.” Id. Thus, the President’s

“immunity from suit,” id., extends to immunity from the imposition of criminal

sentence and judgment as well as trial, because “[t]he Framers’ design of the

Presidency did not envision such counterproductive burdens on the ‘vigor’ and

‘energy’ of the Executive.” Trump, 630 U.S. at 614 (square brackets omitted) (quoting

THE FEDERALIST NO. 70, at 471-72). President Trump “must be afforded that

opportunity” to litigate his claims on appeal “before the proceedings can move ahead

to the merits,” Blassingame, 87 F.4th at 29—or, even more starkly here, before

“moving ahead to” criminal sentencing and judgment on “the merits,” id. (emphasis

added). Indeed, undergoing a criminal sentencing is the most extreme example of a

President “hav[ing] to answer for his conduct in court.” Trump, 603 U.S. at 630. The

New York courts’ insistence on holding a criminal sentencing before President

Trump’s appeals on immunity are resolved reflects the justice of the Queen of Hearts:

L. CARROLL, ALICE’S ADVENTURES

“Sentence first—verdict afterwards.”

WONDERLAND (1865).

In sum, the question whether a President of the United States is entitled to an

automatic stay of criminal proceedings against him, pending the adjudication of his

claims of Presidential immunity in an interlocutory appeal, is a significant federal

question that the New York courts have decided in contradiction of this Court’s

precedent, as well as in contradiction to the case law of other federal courts. This

question alone warrants this Court’s review and an immediate stay of trial-court

proceedings.

B. The Official-Acts Holding Contradicts This Court’s Precedent.

The two substantive questions of Presidential immunity raised in this appeal

will also warrant this Court’s review. First, by repeatedly admitting evidence of

President Trump’s official acts during trial, the trial court violated the principles of

Presidential immunity that this Court enumerated in Trump.

This question

warrants this Court’s review because the trial court’s rulings involve a direct,

repeated conflict between the New York courts and this Court on a “momentous”

question of federal constitutional law. Trump, 603 U.S. at 616.

1. Evidence of President Trump’s public statements to the

American people through official White House channels.

During trial, the District Attorney offered evidence of official Presidential

communications made in 2018 by President Trump’s official White House Twitter

account used to communicate with the American people. App’x 436A-445A. These

“communications in the form of Tweets” constitute one method by which the

President “speak[s] to his fellow citizens and on their behalf.” Trump, 603 U.S. at

629 (quoting Trump v. Hawaii, 585 U.S. 667, 701 (2018)). “[S]ome Presidential

conduct—for example, speaking to and on behalf of the American people—certainly

can qualify as official even when not obviously connected to a particular

constitutional or statutory provision.” Id. at 618 (citing Hawaii, 585 U.S. at 701).

“[A] long-recognized aspect of Presidential power is using the office’s ‘bully pulpit’ to

persuade Americans, including by speaking forcefully or critically, in ways that the

President believes would advance the public interest.”

Id. at 629. In fact, the

President “is even expected to comment on those matters of public concern that may

not directly implicate the activities of the Federal Government.” Id. Thus, “most of

a President’s public communications are likely to fall comfortably within the outer

perimeter of his official responsibilities.” Id.

Even if the public communications solely address attacks on the President’s

conduct, that fact does not undermine their official nature. A public official’s public

statements defending his character and reputation are official acts, because they

directly advance the public official’s effectiveness in his public role. Thus, in Clinton

v. Jones, this Court recognized that President Clinton’s public denials of allegations

of sexual misconduct by Paula Jones “may involve conduct within the outer perimeter

of the President’s official responsibilities.” 520 U.S. 681, 686 (1997). Similarly, the

D.C. Circuit held that “a congressman acted ‘within the scope of employment’ when

he discussed his marital status in his office, during regular business hours, in

response to a reporter’s inquiries.” Council on Am. Islamic Relations v. Ballenger,

444 F.3d 659, 661 (D.C. Cir. 2006). Ballenger held that “[a] Member’s ability to do

his job as a legislator effectively is tied … to the Member’s relationship with the public

and in particular his constituents and colleagues in the Congress.” Id. at 665. Thus,

“there was a clear nexus between the congressman answering a reporter’s question

about the congressman’s personal life and the congressman’s ability to carry out his

representative responsibilities effectively.” Id. at 665-66.

Here, the trial court admitted that “[u]ndoubtedly, there are Tweets . . . that a

President makes that qualify as official communications with the public regarding

matters of public concern,” but held that the Tweets at issue “d[id] not fit that mold”

because they were “entirely personal in nature” and did not “advance a policy concern

or other public interest.” App’x 318A. This reasoning is in full violation of Trump,

Clinton, and Ballenger, among other accepted jurisprudence. Indeed, these public

communications through President Trump’s social-media account—through which he

routinely communicated with the public on matters of public concern during his

Presidency—were official actions of the President that could not be used against him

during trial.

See, e.g., Lindke v. Freed, 601 U.S. 187, 191 (2024).

When he

communicated with the public on Twitter during his Presidency, President Rump

“possessed actual authority to speak on the [Executive Branch’s] behalf,” and

“purported to exercise that authority when he spoke on social media,” thus rendering

those Tweets official acts. Id.

2. Evidence of confidential communications with senior White

House advisors in their official capacity.

The trial court committed the same fatal error with respect to the testimony of

the communications with and observations of President Trump by senior Presidential

advisors Hope Hicks and Madeleine Westerhout. The trial court allowed invasive

“testimony” from a President’s “advisors” for the purpose of “probing the official

act[s]” of President Trump. Trump, 603 U.S. at 632 n.3.

The District Attorney offered, and the trial court admitted, evidence of these

White House advisors’ official communications with and observations of President

Trump in his conduct of official acts. At trial, former White House Communications

Director Hope Hicks testified about her official-capacity communications with

President Trump and the media concerning press inquiries about the underlying

conduct. See App’x 467A-468A. Hicks testified that she spoke with President Trump

about “how to respond to the story” and about “a team” response. App’x 469A. Hicks

also testified about her communications with President Trump regarding a February

2018 New York Times article discussing Michael Cohen’s payments, App’x 471A473A, and about a Karen McDougal interview on CNN in March 2018. App’x 466A467A.

Hicks testified, “I did speak to Mr. Trump.

I was the Communications

Director. This was a major interview. Yes. We just spoke about the news coverage

of the interview, how it was playing out.” App’x 466A-467A. These were undoubtedly

Presidential Communications with President Trump’s key senior White House staff.

In addition, the District Attorney offered, and the trial court admitted,

testimony from Madeleine Westerhout, a Special Assistant to the President and

Executive Assistant to the President in the White House. This testimony discussed

details about President Trump’s conduct of official business in the White House,

including invasive testimony about President Trump’s Presidential practices in his

communications with his Chief of Staff and other key aides, his work habits in the

Oval Office and on Air Force One, and the manner in which President Trump

conducted official business on behalf of the United States. App’x 488A-502A.

The admission of this evidence directly violated this Court’s prohibition in

Trump: “What the prosecutor may not do … is admit testimony or private records of

the President or his advisers probing the official act itself. Allowing that sort of

evidence would invite the jury to inspect the President’s motivations for his official

actions and to second-guess their propriety.” Trump, 603 U.S. at 632 n.3. “As [this

Court] explained, such inspection would be ‘highly intrusive’ and would ‘seriously

cripple’ the President's exercise of his official duties.”

Id. (quoting, inter alia,

Fitzgerald, 457 U.S., at 745, 756). “And such second-guessing would ‘threaten the

independence or effectiveness of the Executive.’” Id. (quoting Trump v. Vance, 591

U.S. 786 (2020)).

Indeed, “special considerations control when the Executive Branch’s interests

in maintaining the autonomy of its office and safeguarding the confidentiality of its

communications are implicated.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 385 (2004).

While interacting with Hicks and Westerhout, among others, President Trump was

“supervis[ing]” someone who was “wield[ing] executive power on his behalf” which

“follows from the text of Article II” and is thus absolutely immune. Trump, 603 U.S.

at 608. Holding the “pall of potential prosecution” over the sort of communications as

those between President Trump and his White House Communications Director and

Executive Assistant would result in the President being “chilled from taking the bold

and unhesitating action required of an independent Executive.” Id. at 613 (internal

quotations omitted).

3. Evidence regarding President Trump’s exercise of core

executive powers, including the investigative and Pardon

powers.

The trial testimony of convicted perjurer Michael Cohen presented a series of

additional violations of Presidential immunity from evidentiary use of official acts.

For example, Cohen testified that President Trump “told” him that an FEC

inquiry would be “taken care of” by then-Attorney General Jeff Sessions, and that

Cohen conveyed that information to another individual. App’x 513A-514A. Even if

this conversation had happened, which is not conceded, Cohen’s testimony included

information regarding President Trump’s “exclusive authority and absolute

discretion” to “decide which crimes to investigate and prosecute, including with

respect to allegations of election crime.” Trump, 603 U.S. at 620 (cleaned up). This

reflects the exercise of core, unreviewable Executive power, that is plainly immune

from evidentiary use.

The District Attorney also elicited testimony from Cohen suggesting that he

was seeking the “power of the President” in 2017 to protect him in connection with

Congressional investigations. App’x 509A. Cohen was more explicit with respect to

2018 communications with Attorney Robert Costello, stating that these were a means

of pursuing a “back channel communication to the President.”

App’x 518A.

Specifically, Cohen told the jury that a June 13, 2018 email, App’x 431A-432A,

referred to “potential pre-pardons” that Cohen and Attorney Robert Costello

discussed after President Trump allegedly referenced the concept, implying that they

had knowledge that President Trump was willing to use the Pardon Power in their

favor. App’x 522A. Again, this testimony addressed the exercise of the President’s

Pardon Power, which is a core, unreviewable Executive power subject to absolute

immunity. “The President’s authority to pardon,” established in Article II, § 2, cl. 4,

is one of the “core” constitutional powers “invested exclusively in [the President] him

by the Constitution.” Trump, 603 U.S. at 607-08.

In another instance, during trial, Cohen sought to justify his perjury before

Congress by reference to President Trump’s public statements in response to the

investigations by Congress and Special Counsel Mueller, noting that “there was no

Russia-Russia-Russia.” App’x 510A. Vitally, President Trump’s public statements in

response to the Congressional and Special Counsel investigations were part of his

official authority to address the American people. Moreover, Presidential power

includes the authority to engage in the “hurly-burly, the give-and-take of the political

process between the legislative and the executive,” Trump v. Mazars USA, LLP, 591

U.S. 848, 859 (2020) (cleaned up)—a process that is exclusively vested in the

President’s discretion through the Recommendations Clause, U.S. CONST. art. II, § 3.

The evidence relating to President Trump’s responses to these Congressional and

Special

Counsel

investigations

are

absolutely

immune.

worst,

such

communications are entitled to “presumptive immunity.” Trump, 603 U.S. at 614.

At trial, the District Attorney also presented a February 2018 text message

from Cohen indicating that President Trump had “approved” Cohen publicly

addressing an FEC complaint, both formally and through a public statement. App’x

435A; see also App’x 429A (Cohen’s statement). These communications involved

President Trump using a third party (Cohen) to make “public communications” that

“are likely to fall comfortably within the outer perimeter of his official

responsibilities.”

Trump, 603 U.S. at 598. This was another clear violation of

Presidential immunity, resulting in a series of violations of the doctrine during the

testimony of a single witness.

4. Evidence of the submission of government forms required by

the President’s official role as Chief Executive.

During trial, the trial court admitted documentary evidence reflecting official

Presidential actions, including the 2017 Office of Government Ethics (OGE) form

signed by President Trump regarding compliance of the President with applicable

laws and regulations. App’x 427A, 474A-485A. The trial court, wrongly and rather

bafflingly, found that the evidence of President Trump’s statements on the OGE

forms, which were required to be completed, and were completed, in his official

capacity as President, were “not deemed official conduct.” App’x 310A. In so finding,

the trial court acknowledged that “the President is . . . required to complete [the] OGE

Form” by virtue of his official position, and conceded that “Defendant’s statement that

he ‘was required to make the disclosures on the Form in his official capacity as

President’ may be true.” App’x 310A. Yet the trial court reasoned that, since other

federal employees were required to complete OGE forms in their own official

capacities, the President completing the form in his official capacity did not render

the communications made therein “within the outer perimeter of his authority.”

App’x 310A. This reasoning is plainly wrong.

Moreover, the President’s speaking to the American people regarding the

“public trust” qualifies as official conduct. Trump, 603 U.S. at 618, 629. According

to OGE, one of the purposes of the form signed by President Trump is “to ensure

confidence in the integrity of the Federal Government by demonstrating that they

are able to carry out their duties without compromising the public trust.” 5 C.F.R. §

2634.104(a). President Trump, by signing and submitting this form as President, was

speaking to the American public regarding the “public trust” through his official

capacity as President. See Trump, 603 U.S. at 618, 629. This was inadmissible

official-acts evidence, the admission of which fully violated Presidential immunity

under Trump and related jurisprudence.

Considering all this overwhelming evidence, the trial court also wrongly found

that even if all the evidence constituted official acts subject to Presidential immunity,

which it did, the admission of such evidence was somehow “harmless.” App’x 322A.

First, the errors were far from harmless, especially considering that the prosecution

used official-acts evidence in their summation. Second, in Trump, this Court

explicitly rejected the notion that “as-applied challenges in the course of the trial

suffice to protect Article II interests.” Trump, 603 U.S. at 635. The trial court’s

harmless-error analysis is part and parcel of the approach of providing “as-applied

challenges in the course of trial,” which this Court rejected.

C. The New York Court’s Denial of Immunity to the President-Elect

Commits a Grave Error on an Important Question of Federal Law.

All parties agree that the sitting President of the United States enjoys absolute

Presidential immunity from any criminal investigation or prosecution, state or

federal. “In the criminal context, . . . ‘the separation of powers precludes the criminal

prosecution of a sitting President.’” Trump, 603 U.S. 593, 616 n.2 (quoting the Brief

of the United States). “Given the potentially momentous political consequences for

the Nation at stake, there is a fundamental, structural incompatibility between the

ordinary application of the criminal process and the Office of the President.” A Sitting

President’s Amenability to Indictment and Criminal Prosecution, 24 U.S. Op. O.L.C.

222 (2000), 2000 WL 33711291, *28 (“2000 OLC Memo”); see also 3 J. STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 1563, pp. 418-19 (1st

ed. 1833). “The indictment or criminal prosecution of a sitting President would

unconstitutionally undermine the capacity of the executive branch to perform its

constitutionally assigned functions.” 2000 OLC Memo, at *1.

Like other aspects of Presidential immunity, sitting-President immunity binds

state prosecutors and state courts under the Supremacy Clause. “States have no

power . . . to retard, impede, burden, or in any manner control the operations” of the

federal government. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 436 (1819).

“[T]he Constitution guarantees ‘the entire independence of the General Government

from any control by the respective States.’” Trump v. Vance, 591 U.S. 786, 800 (2020)

(quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U.S.

516, 521 (1914)). “It follows that States also lack the power to impede the President’s

execution of those laws.” Id. at 801. Under this principle, “[t]he Supremacy Clause

prohibits state judges and prosecutors from interfering with a President’s official

duties.” Id. at 806. Because federal prosecutors may not charge or proceed in any

way against a sitting President, it follows a fortiori that state prosecutors may not do

so either.

The New York courts erred, however, in holding that this immunity provides

no protection to the President-Elect in the brief but crucial period between his election

in early November and his inauguration on January 20 of the following year. On the

trial court’s view, state prosecutors and state courts may charge, prosecute, put on

trial, sentence, and even imprison the President-elect during the critical and sensitive

period of Presidential transition. That conclusion is indefensible, and it contradicts

the logic of the authorities supporting sitting-President immunity.

In the Presidential Transition Act, Congress emphasized the close relationship

and continuity between the President’s transitional duties and his official duties upon

inauguration: “The national interest requires that such transitions in the office of

President be accomplished so as to assure continuity in the faithful execution of the

laws and in the conduct of the affairs of the Federal Government, both domestic and

foreign.”

3 U.S.C. § 102 note (§ 102 of the Presidential Transition Act).

The

President-elect’s transition activities are crucial to his future exercise of the

Executive Power, and thus “[a]ny disruption occasioned by the transfer of the

executive power could produce results detrimental to the safety and well-being of the

United States and its people.” Id. Accordingly, “all officers of the Government” are

required to “so conduct the affairs of the Government for which they exercise

responsibility and authority as ... to take appropriate lawful steps to avoid or

minimize disruptions that might be occasioned by the transfer of the executive power,

and ... to promote orderly transitions in the office of President.” Id.

Many authorities recognize the crucial and sensitive nature of Presidential

transition activities as integral to, and preparatory to, the incoming President’s

assumption of the Executive Power of the United States on January 20. See, e.g.,

Reimbursing Transition-Related Expenses Incurred Before The Administrator Of

General Services Ascertained Who Were The Apparent Successful Candidates For The

Office Of President And Vice President, 25 Op. O.L.C. 7, 2001 WL 34058234, at *3

(emphasis added). These authorities include President Kennedy and members of

Congress:

[E]xpenses incurred by the President-elect and Vice-President-elect after the

election ... are precisely the sort of expenses that Congress felt it was important

to fund publicly because they viewed these activities as: ‘expenses that are

necessary and pertinent to the job of the Presidency and the Vice Presidency,’

109 Cong. Rec. at 19,738 (Senator Jackson); ‘a public function,’ id. at 13,346

(Rep. Rosenthal); ‘an integral part of the presidential administration,’ id. at

13,347 (Rep. Monagan); and, as President Kennedy expressed in his letter

transmitting the proposed legislation that was to become the Presidential

Transition Act, ‘the reasonable and necessary costs of installing a new

administration in office.’”

Id. at *4 (final quote from Letter of Transmittal from the President of the United States

to the President of the Senate and the Speaker of the House of Representatives (May

29, 1962), reprinted in H.R. Rep. No. 88-301, at 9, 12 (1963)). “As Congressman

Charles Joelson put it during the floor debates over the enactment of the Presidential

Transition Act of 1963: ‘[O]nce a man is President-elect, he is not the Democratic

President-elect; he is not the Republican President-elect; he is the President-elect of

the people of the United States of America. In that interim time he is called upon

probably to make more fateful decisions than he will have to make after he is, indeed,

sworn into office.” Joshua P. Zoffer, The Law of Presidential Transitions, 129 Yale L.

J. 2500, 2504 (2020) (quoting 109 Cong. Rec. 13348 (1963))

Similarly, the “structure of the Constitution” and “the separation of powers”

compel the conclusion that the President-elect is completely immune from criminal

process. 2000 OLC Memo, at *10, *18. The separation of powers prevents the

criminal prosecution of the President because it would “prevent the executive from

accomplishing its constitutional functions.” Id. at *19. “Three types of burdens merit

consideration” in this analysis, id.—all of which strongly support extending the same

immunity of the President-elect.

First, “the actual imposition of a criminal sentence of incarceration . . . would

make it physically impossible for the President to carry out his duties.” Id. This is

just as true of the President-elect as the President. Yet the logic of the trial court’s

position entails that state prosecutors and courts could imprison the President-elect

during transition and release him only at 11:59:59 a.m. on Inauguration Day—thus

allowing state actors to completely thwart the Presidential transition.

Moreover, any criminal sentencing, and even the distraction of ongoing

criminal proceedings, disrupts and will continue to disrupt the enormously

burdensome and sensitive tasks of the Presidential transition.

As the General

Services Administration describes, “[t]he process of a presidential transition is a

monumental undertaking. In just over ten weeks between the election and the

inauguration, a president-elect must prepare to take control of an executive branch

that comprises over 140 agencies, hundreds of sub-components, and millions of

civilian and uniformed personnel.”

U.S. General Services Administration,

Presidential

Transition

Directory,

https://www.gsa.gov/governmentwide-

initiatives/presidential-transition-2024/ethics-and-accountability.

Crucially, the President-elect must immediately begin addressing the most

sensitive areas of national security. The Presidential Transition Act provides that

transition activities “shall include the preparation of a detailed classified,

compartmented summary by the relevant outgoing executive branch officials of

specific operational threats to national security; major military or covert operations;

and pending decisions on possible uses of military force. This summary shall be

provided to the apparent successful candidate for the office of President as soon as

possible after the date of the general elections….” 3 U.S.C. § 102 note; see also Henry

B. Hogue, Cong. Research Serv., R46602, Presidential Transition Act: Provisions and

Funding 8 (2024).

The President-elect’s complete engagement and undivided attention to this

process are critical for national security: “One of the top priorities of any presidential

administration is to protect the country from foreign and domestic threats. While a

challenge at all times, the country is especially vulnerable during the time of

presidential transitions.…”

Center for Presidential Transition, Presidential

Transitions Are a Perilous Moment for National Security (Aug. 16, 2023),

https://presidentialtransition.org/reports-publications/presidential-transitions-area-perilous-moment-for-national-security/. “[T]he first months of new administrations

are an especially vulnerable time for the country’s national security. Successful

transition planning is essential for minimizing the risk.” Id.

Second, “the public stigma and opprobrium occasioned by … criminal

proceedings” during the Presidential transition “could compromise the President’s

ability to fulfill his constitutionally contemplated leadership role with respect to

foreign and domestic affairs.” 2000 OLC Memo, at *19. Indeed, “the severity of the

burden imposed upon the President by the stigma arising both from the initiation of

a criminal prosecution and also from the need to respond to such charges through the

judicial process would seriously interfere with his ability to carry out his

constitutionally assigned functions.” Id. at *22.

Once again, the same reasoning applies equally to the President-elect. “[T]he

distinctive and serious stigma of indictment and criminal prosecution imposes

burdens fundamentally different in kind from those imposed by the initiation of a

civil action, and these burdens threaten the President’s ability to act as the Nation’s

leader in both the domestic and foreign spheres.” Id. During the transitional period,

the President-elect must communicate with world leaders, formulate his agenda for

foreign and domestic relations, select key personnel for his incoming administration,

and coordinate with the outgoing Administration across all agencies of the federal

government. Indeed, President Trump has been actively engaged in all these tasks

since November 5, subject to the unconstitutional disruption of this state-court

criminal proceeding. “Potential criminal liability, and the peculiar public opprobrium

that attaches to criminal proceedings, are plainly more likely to distort Presidential

decisionmaking” than civil lawsuits, Trump, 603 U.S. at 613, and they are equally

likely to disrupt the Presidential transition.

Third, “the mental and physical burdens of assisting in the preparation of a

defense for the various stages of the criminal proceedings . . .might severely hamper

the President’s performance of his official duties.” 2000 OLC Memo, at *19. The

same principle extends to Presidential transition activities as well.

Defending

criminal litigation at all stages—especially, as here, defending a criminal

sentencing—is uniquely taxing and burdensome to a criminal defendant. “Once

criminal charges are filed, the burdens of responding to those charges are different in

kind and far greater in degree than those of responding to civil litigation.” Id. at *22.

These demands of time, energy, and attention are just as unconstitutionally

burdensome and disruptive during the Presidential transition as during the

Presidency itself. They are particularly burdensome when a President-elect faces the

prospect of criminal judgment and sentencing during his transitional period.

Notwithstanding all these authorities, the trial court concluded that President

Trump possesses no immunity from criminal process until 12:00 p.m. on January 20,

2025. In so holding, the trial court relied on a case-specific analysis, imposing its own

tendentious view of burdens on President Trump’s transition activity, and

erroneously concluding that appearing for a criminal sentencing 10 days before his

Inauguration would be not-too-burdensome on President Trump. App’x 342A-343A.

This analysis is wrong, because it dramatically understates the burden, disruption,

stigma, and distraction that this case threatens to impose and is already imposing on

President Trump in his transition efforts, for the reasons discussed above. Moreover,

if the trial court imposes sentence on January 10, that will require President Trump

to pursue a series of criminal appeals during his term as President, including the

possibility of remand for further criminal proceedings in the trial court—a situation

that the doctrine of Presidential immunity squarely rejects.

More fundamentally, the trial court’s analysis directly contradicts the

reasoning of the very 2000 OLC Memo on which it relies. That OLC Memo correctly

rejected the case-by-case, balancing approach employed by the trial court, and instead

emphasized that the existence of Presidential immunity requires a categorical

analysis: “Thus a categorical rule against indictment or criminal prosecution is most

consistent with the constitutional structure, rather than a doctrinal test that would

require the court to assess whether a particular criminal proceeding is likely to

impose serious burdens upon the President.” 2000 OLC Memo, at *25. Criminal

sentencing undoubtedly imposes such “serious burdens,” and cannot be allowed to

proceed.

Thus, a sitting President, or President-elect, does not have to subject himself

in any case to an individual judge’s case-by-case balancing of the burdens on the

Presidency—an inquiry that itself violates the separation of powers and the

Supremacy Clause. The trial court’s January 3, 2025 Decision and Order, therefore,

does exactly what the OLC Memo rejects—it involves “the court . . . assess[ing]

whether a particular criminal proceeding is likely to impose serious burdens upon the

President[-elect].” Id.

II. There Is a Significant Possibility of Reversal.

For the reasons stated above in Part I, there is more than a “significant

possibility” of reversal on each of these three questions, White, 458 U.S. at 1302—

there is a high likelihood of reversal. The New York courts’ rulings on the first two

questions are in direct and irreconcilable conflict with this Court’s decision in Trump,

603 U.S. 593, as well as decisions of other federal courts. The trial court’s refusal to

recognize the President-elect’s immunity from state criminal process during the brief

but crucial period of Presidential transition is also erroneous, for the reasons

discussed above. See supra, Part I.

III. There Is a Likelihood of Irreparable Harm Absent the Stay.

The third factor considers whether the applicant “would … suffer irreparable

harm were the stay not granted.”

Karcher, 455 U.S. at 1306. Here, the threat of

irreparable injury is clear and manifest.

Indeed, President Trump is already

suffering grave irreparable injury from the disruption and distraction that the trial

court abruptly inflicted by suddenly scheduling a sentencing hearing for the

President-Elect of the United States, on five days’ notice, at the apex of the

Presidential transition. These harms continue to increase as the New York courts

deny relief and the sentencing hearing approaches.

First, even the general burdens of defending a criminal case while an immunity

appeal is pending constitute irreparable harm. As noted above, absolute immunity

is “an entitlement not to stand trial or face the other burdens of litigation…. The

entitlement is an immunity from suit rather than a mere defense to liability; and like

an absolute immunity, it is effectively lost if a case is erroneously permitted to go to

trial.” Mitchell, 472 U.S. at 526. Absolute immunity’s protection is “not limited to

liability for money damages,” but “also include[s] ‘the general costs of subjecting

officials to the risks of trial—distraction of officials from their governmental duties,

inhibition of discretionary action, and deterrence of able people from public service.’”

Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)).

Under absolute

immunity, “even such pretrial matters as discovery are to be avoided if possible, as

‘[i]nquiries of this kind can be peculiarly disruptive of effective government.’” Id.

(quoting Harlow, 457 U.S. at 817); see also Pearson v. Callahan, 555 U.S. 223, 231-

32 (2009) (reaffirming that official immunity is “an immunity from suit rather than

a mere defense to liability” that “is effectively lost if a case is erroneously permitted

to go to trial”); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009); Behrens v. Pelletier, 516

U.S. 299, 308 (1996); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 143-44 (1993).

All these injuries are magnified exponentially when the threatened individual

is the President-Elect of the United States. President Trump is currently engaged in

the most crucial and sensitive tasks of preparing to assume the Executive Power in

less than two weeks, all of which are essential to the United States’ national security

and vital interests. Forcing President Trump to prepare for a criminal sentencing in

a felony case while he is preparing to lead the free world as President of the United

States in less than two weeks imposes an intolerable, unconstitutional burden on him

that undermines these vital national interests.

During the transitional period,

President Trump is communicating with world leaders, formulating his agenda for

foreign and domestic relations, selecting key personnel for his incoming

administration, and coordinating with the outgoing Administration across all

agencies of the federal government. Just as “the severity of the burden” and “the

stigma arising ... from ... criminal prosecution”—or, more dramatically here, criminal

sentencing—would disrupt constitutionally assigned functions of a sitting President

and threaten to injure his standing and credibility with world leaders, 2000 OLC

Memo, at *22, so also it undermines the ability of the President-Elect to conduct an

orderly and effective transition.

These irreparable harms are further compounded by the abruptness and

extreme haste of the trial court’s action. After six months of post-trial litigation on

Presidential immunity since this Court’s decision in Trump on July 1, 2024, the New

York trial court suddenly denied the last pending motion on late on Friday afternoon,

January 3, 2025, and set the matter for sentencing less than one week later, not even

allowing for pre-sentencing submissions by either the prosecution or President

Trump. This constitutes an extreme example of the “highly expedited” consideration

that this Court cautioned against in Trump. 603 U.S. at 616. The one-week period

between the denial of President Trump’s immunity motion, and criminal sentencing,

provides no meaningful window for appellate review of “unprecedented nature of this

case” and “the very significant constitutional questions” raised by President Trump’s

assertions of Presidential immunity. Id. In fact, it would be debilitating to our

system of government if such a stay, which is frequently granted in ordinary criminal

cases, were denied to a President of the United States asserting claims of Presidential

immunity from prosecution that “raise[s] multiple unprecedented and momentous

questions about the powers of the President and the limits of his authority under the

Constitution.” Id. Yet that is what the New York courts have done in error.

IV. The Balancing of Equities Strongly Favors a Stay.

Since this is not a “close case,” the Court need not “balance the equities.”

Karcher, 455 U.S. at 1305-06. But if it does, the balance of harms and the public

interest overwhelmingly favor a stay, for all the reasons discussed above.

The

purpose of a stay pending interlocutory review is to prevent the very doctrine of

Presidential immunity to become futile, thus threatening the effectiveness of the

Presidency by distorting Presidential decisionmaking and deterring bold and

unhesitating action. See Trump, 603 U.S. at 613-14. Most fundamentally, forcing

President Trump to defend a criminal case and appear for a criminal sentencing

hearing at the apex of the Presidential transition creates a constitutionally

intolerable risk of disruption to national security and America’s vital interests. By

contrast, the State of New York’s asserted interest in proceeding with the criminal

sentencing of the President-Elect of the United States on politically motivated

charges at breakneck speed at the apex of a Presidential transition should be

accorded no weight.

CONCLUSION

This Court should immediately order a stay of pending criminal proceedings in

the Supreme Court of New York County, New York, pending the final resolution of

President Trump’s interlocutory appeal raising questions of Presidential immunity,

including in this Court if necessary. The Court should also enter, if necessary, a

temporary administrative stay while it considers this stay application.

January 7, 2025

Respectfully submitted,