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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

ROY COCKRUM,

ET AL .,

v.

Plaintiffs,
Case No. 3:18-cv-484-HEH

DONALD J. TRUMP FOR PRESIDENT, INC.,
Defendant.

DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S
OPENING BRIEF IN SUPPORT OF
MOTION FOR STAY OF DISCOVERY

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INTRODUCTION
Defendant Donald J. Trump for President, Inc. (Campaign) has moved to dismiss Plaintiffs’ claims. But Plaintiffs have rejected the Campaign’s request to defer discovery until after
resolution of the motion to dismiss. They have also served the Campaign with a set of discovery
requests, which (if the requests’ overbroad definitions are taken seriously) purport to demand
documents from the sitting President and Vice President of the United States. The Campaign,
accordingly, moves for a stay of all discovery pending resolution of the motion to dismiss.
Discovery would interfere with the responsibilities of the Executive Branch, infringe the
Campaign’s First Amendment rights, conflict with Special Counsel Robert Mueller’s parallel
criminal investigation, and draw this Court and the appellate courts into a never-ending stream of
discovery disputes. These burdens are certain. In contrast, because the Campaign has filed a motion to dismiss all of Plaintiffs’ claims, Plaintiffs’ claimed need for discovery is entirely hypothetical. The mere possibility that Plaintiffs may end up needing discovery if they prevail on the
Campaign’s motion to dismiss does not justify the imposition of these burdens.
In Cockrum v. Donald J. Trump for President, Inc., 319 F. Supp. 3d 158, 189 (D.D.C.
2018), Plaintiffs’ previous lawsuit against the Campaign, Judge Huvelle denied Plaintiffs the opportunity to take jurisdictional discovery before resolution of the Campaign’s motion to dismiss,
reasoning that doing so would “set coequal branches … onto a collision course.” Similarly, in In
re Donald J. Trump, No. 18-2486, Dkt. 9 (4th Cir. Dec. 20, 2018), an Emoluments Clause lawsuit in which the plaintiffs sought discovery from the President, the Fourth Circuit stayed discovery and all other proceedings pending appellate review of the district court’s denial of a motion
to dismiss. If it was proper to deny discovery outright in Cockrum, and to stay discovery despite
denial of a motion to dismiss in Trump, it is surely appropriate to stay discovery pending resolution of the motion to dismiss in this case.
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FACTS
In 2017, Plaintiffs sued the Campaign in federal district court in the District of Columbia,
alleging that the Campaign conspired with Russia and WikiLeaks to publish emails stolen from
the Democratic National Committee. See Cockrum v. Donald J. Trump for President, Inc., 319 F.
Supp. 3d 158 (D.D.C. 2018). Upon filing the lawsuit, Plaintiffs’ lawyers issued a press release
that trumpeted supportive statements from a variety of “legal experts.” https://tinyurl.com/
y94nhqf3. This press release candidly described this litigation as “a vehicle for discovery of documents and evidence,” and confidently predicted that “the matter will easily survive a motion to
dismiss and therefore allow discovery regarding these critically important matters.” Id.
After the Campaign moved to dismiss Plaintiffs’ claims in the District of Columbia,
Plaintiffs moved for “jurisdictional discovery” to rebut the Campaign’s personal jurisdiction defense. Cockrum, 319 F. Supp. 3d 187. In Judge Huvelle’s words, Plaintiffs “ask[ed] for everything under the sky.” Id. at 189. Plaintiffs’ requests amounted to an “ill-defined,” “overly broad,”
“not narrowly tailored,” “wide-ranging,” “thinly-veiled,” “speculative,” “overreaching” “fishing
expedition.” Id. at 187–89. And discovery would set the court on “a collision course” with a “coequal branc[h] of government,” overlap with “Special Prosecutor Robert Muller’s ongoing investigations,” and “draw [the] Court into endless discovery disputes.” Id. at 189. Judge Huvelle denied discovery, and dismissed the case for lack of personal jurisdiction and improper venue. Id.
Plaintiffs then refiled their lawsuit in this district, and the Campaign again moved to
dismiss. (Dkt. 22.) This Court scheduled a hearing on the motion to dismiss for January 24, 2019,
and, in the meantime, ordered the parties to meet and confer in accordance with Federal Rule of
Civil Procedure 26(f). (Dkt. 68.) At the Rule 26(f) conference held starting on January 2, and
again in the Rule 26(f) report filed on January 11, Plaintiffs rejected the Campaign’s proposal to
defer discovery until after resolution of the Campaign’s motion to dismiss. (Dkt. 72.)
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On January 8, Plaintiffs served the Campaign with their first set of discovery requests.
(Ex. 1) Plaintiffs’ requests demanded documents from the Campaign, which Plaintiffs have defined to include “any past and present parents, subsidiaries, affiliates, predecessors, successors,
employees, independent contractors, officers, agents, advisors, vendors, accountants, and all other persons or entities acting on its behalf or under its direct or indirect control, whether paid or
unpaid.” (Id. at 2.) If taken seriously, that vastly overbroad definition includes the President of
the United States. It includes a number of high-ranking federal officials, including Vice President
Mike Pence, Secretary of Housing and Urban Development Ben Carson, Senior Advisors to the
President Jared Kushner and Stephen Miller, Counselor to the President Kellyanne Conway, and
White House Cabinet Secretary William McGinley. By its terms, it even includes thousands of
volunteers who knocked doors or called voters or delivered yard signs on behalf of the Campaign.
If that were not bad enough, many of Plaintiffs’ individual requests are broader than the
requests previously criticized by Judge Huvelle. For example:
Requests criticized by Judge Huvelle
(319 F. Supp. 3d at 188–89)

Plaintiffs’ current requests
(Ex. 1) (all emphases added)

“Communications” with “any Russian” relating to “All documents relating to the publication or any
the “publication of the DNC emails”
other use … of [DNC] e-mails”
Documents relating to “meetings” with Russians “All documents relating to any meeting [with] any
“in which any form of assistance by Russians … Russian national in 2016”
was discussed”
“Communication[s]” with “any Russian” “in the “All documents discussing or relating to any comDistrict of Columbia” “in which any form of assis- munications [with] any Russian national regarding
tance by Russia … was discussed”
the DNC”
“Communication[s]” with “WikiLeaks” “in which “All documents discussing or relating to any comany form of assistance by Russia … was discussed” munications [with] WikiLeaks”

The Campaign now moves for a stay.

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ARGUMENT
I.

The Court Should Stay Discovery Until After Resolution Of The Campaign’s
Pending Motion To Dismiss
A federal district court has the “inherent” power to “stay proceedings” in order to pro-

mote “economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. American
Co., 299 U.S. 248, 254 (1936). In resolving a motion for a stay, a court “should consider three
factors”: (1) “hardship … to the moving party if the action is not stayed,” (2) “interests of judicial economy,” and (3) “potential prejudice to the non-moving party.” Gibbs v. Plain Green, LLC,
331 F. Supp. 3d 518, 525 (E.D. Va. 2018).
Even in routine cases, federal courts regularly “defe[r] discovery” until after “a motion to
dismiss … is decided.” 8A Charles Alan Wright, Arthur R. Miller, et al., Federal Practice &
Procedure § 2046.1 (3d ed. 2018). Indeed, “a stay of discovery pending the determination of a
dispositive motion is an eminently logical means to prevent wasting time and effort of all concerned, and to make the most efficient use of judicial resources.” Sai v. Dep’t of Homeland Security, 99 F. Supp. 3d 50, 58 (D.D.C. 2015); see, e.g., Doe v. Old Dominion University, 289 F. Supp.
3d 744, 748 (E.D. Va. 2018) (discovery stayed until resolution of motion to dismiss); Williams v.
Guilford Tech. Community Coll. Bd. of Trs., 117 F. Supp. 3d 708, 714 (M.D.N.C. 2015) (same).
In this case, the justifications for deferring are far more compelling than in routine litigation. This case involves discovery from the President and high-ranking federal officials (raising
separation-of-powers problems) and from a political campaign (raising First Amendment problems), on subjects that overlap with Special Counsel Robert Mueller’s investigation (raising concerns about coordinating parallel civil and criminal proceedings). Put simply, the reasons for
staying discovery in this case until after resolution of the motion to dismiss are overwhelming.

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A.

A stay of discovery would avert serious hardship

Proceeding to discovery would cause serious “hardship.” Gibbs, 331 F. Supp. 3d at 525.
Indeed, it would transgress the separation of powers, violate the Campaign’s rights under the
First Amendment, and interfere with an ongoing criminal investigation.
Separation of powers. The Supreme Court has emphasized the “paramount necessity” of
protecting “the Office of the President” from “civil discovery” on “insubstantial legal claims”—
lest civil litigants use “meritless” lawsuits to compromise “the Executive’s interests in maintaining its autonomy and safeguarding its communications’ confidentiality.” Cheney v. U.S. District
Court, 542 U.S. 367, 370, 385–87 (2004). Critically, federal courts must account for these “paramount” interests at the front end by imposing appropriate limits on “the timing and scope of
discovery.” Id. at 385. Seeking to control discovery after the process has begun is unacceptable
because it would force the President “to bear the onus of critiquing the unacceptable discovery
requests line by line,” and also because the “checks in the civil discovery process” are “insufficient” to protect the President. Id. at 386, 388.
In this case, Plaintiffs have already purported to demand documents relating to the President’s official acts. For example, Plaintiffs’ request for “any communications between The
Trump Campaign and any Russian national regarding … the 2016 DNC Hack” would cover diplomatic negotiations between the President of the United States and the President of Russia—
“Trump Campaign” is defined to include President Trump, “any Russian national” includes President Putin, and the request does not include a limitation to any particular time window. (Ex. 1 at
6.) Similarly, Plaintiffs’ request for “all documents relating to any meeting between The Trump
Campaign and any Russian national in 2016” would cover diplomatic meetings between President-Elect Trump and foreign ambassadors during the presidential transition. (Id. at 9.) And that
is just the start. The Amended Complaint contemplates further discovery into the President’s of6

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ficial acts: the formulation of foreign policy regarding “Russia,” deliberations about whether to
sign “a bill sanctioning Russia,” statements at an international “summit,” and the “decision to
fire Director Comey.” (Am. Compl. ¶¶ 169, 171, 252.)
Even where a plaintiff seeks discovery regarding a sitting President’s private rather than
official acts, “the high respect that is owed to the office of the Chief Executive … should inform … the timing and scope of discovery.” Clinton v. Jones, 520 U.S. 681, 707 (1997). “Because of the singular importance of the President’s duties, diversion of his energies by concern
with private lawsuits would raise unique risks to the effective functioning of government.” Nixon
v. Fitzgerald, 457 U.S. 731, 751 (1982). Plaintiffs, again, have already asked for discovery from
the Campaign, defined to include the President, regarding a wide range of meetings, documents,
and communications from the President’s time as a political candidate. (Ex. 1 at 5–9.) The
Amended Complaint promises more of the same, making allegations about the President’s
“meetings,” “speech[es],” “tax returns,” “business relationships,” and “financial ties,” going
back all the way to “1987.” (Am. Compl. ¶¶ 16, 98, 128, 238.) And in the Rule 26(f) report,
Plaintiffs reserved the option of compelling the President to sit for a deposition. (Dkt. 72 at 12.)
Courts must also protect other high-ranking government officials from “disruptive discovery.” Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009). “If a Government official is to devote time
to his or her duties, … it is counterproductive to require the substantial diversion that is attendant
to participating in litigation.” Id. Plaintiffs have already purported to demand documents from
just about everyone who has ever been affiliated with the Campaign. (Ex. 1 at 2.) That category,
understandably, includes many current government-officials, such as the Vice President, the Secretary of Housing and Urban Development, and multiple White House advisors. Supra 4. And
there is no reason to expect Plaintiffs to stop there, since their Amended Complaint includes alle-

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gations about Vice President Pence and various White House advisors. (Am. Compl. ¶¶ 28, 124,
222.) Judge Huvelle was right: proceeding to discovery will “set coequal branches of the government onto a collision course.” Cockrum, 319 F. Supp. 3d at 189.
First Amendment. Proceeding to discovery raises serious First Amendment problems
because Plaintiffs’ claims concern political speech. The Supreme Court has held that courts
should “minim[ize] … discovery” in cases involving “political speech,” to avoid “chilling speech
through the threat of burdensome litigation.” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449,
469 (2007) (opinion of Roberts, C.J.). Otherwise, many speakers, “rather than undertake the considerable burden … of vindicating their rights through case-by-case litigation, will choose simply
to abstain from protected speech, harming not only themselves but society as a whole, which is
deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003). As
the Campaign’s motion to dismiss explains, the core of this case is an alleged act of political
speech: the disclosure of information about an opposing political campaign on the internet. (See
Dkt. 23 at 4–9.) Forcing the Campaign to undergo burdensome discovery simply because Plaintiffs allege that it has engaged in this expression chills constitutionally protected speech.
Proceeding to discovery also raises serious First Amendment problems because the defendant here is a political campaign. The First Amendment prohibits the courts from compelling
a political group to divulge “membership lists.” NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 466 (1958). Plaintiffs, however, have demanded disclosure of a full list of the Campaign’s
“employees,” “advisors,” and “consultants,” “whether paid or unpaid.” (Ex. 1 at 5.) The First
Amendment likewise prohibits the use of “civil discovery” to compel the disclosure of “internal
campaign communications.” Perry v. Schwarzenegger, 591 F.3d 1147, 1158 (9th Cir. 2010). Yet
Plaintiffs have demanded disclosure of “documents relating to the … use … of e-mails … in the

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2016 DNC Hack”—a category would encompass internal communications and strategy memoranda about how a presidential campaign should respond to a major news story. (Ex. 1 at 6.)
They have also demanded discovery about the Campaign’s alleged “attempt[s] to influence [the
Republican] party platform.” (Ex. 1 at 9.) The violation of First Amendment rights is palpable.
Parallel investigations. Discovery would also conflict with Special Counsel Robert
Mueller’s ongoing criminal investigation. Courts routinely “defe[r] civil [discovery] pending the
completion of parallel criminal prosecutions.” United States v. Kordel, 397 U.S. 1, 12 n.27
(1970). Stays protect the prosecution by preventing civil litigants from interfering with “the integrity of [ongoing] criminal investigations.” In re Grand Jury Subpoena, 866 F.3d 231, 235 (5th
Cir. 2017). They protect the defense by preventing “exposure of the criminal defense strategy” in
“civil discovery.” Creative Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009). And
they protect witnesses in the civil case by preserving their “Fifth Amendment protection against
self-incrimination.” United States v. Shane Co., 147 F.R.D. 99, 101 (M.D.N.C. 1992).
Here, Special Counsel Robert Mueller has been investigating allegations of Russian interference in the 2016 presidential election, and has already “obtained 35 indictments.” (Am.
Compl. ¶¶ 81.) Launching parallel civil discovery into the same subjects would threaten to interfere with that investigation; for instance, responding to discovery requests may compromise the
confidentiality of the investigation by revealing to these private litigants what preservation protocols the Campaign has already adopted, what collections it has already made, and what documents it has already disclosed during the course of the Mueller investigation. Launching parallel
discovery also jeopardizes the rights of potential criminal defendants, since Plaintiffs’ discovery
request purports to demand documents from some people currently under indictment. (Ex. 1 at 2;

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Am. Compl. ¶ 81.) And, as Judge Huvelle recognized, Plaintiffs obviously “will be faced with
witnesses who will invoke their Fifth Amendment rights.” 319 F. Supp. 3d at 189.
On top of all of that, congressional committees are also vigorously investigating the same
issues. (Am. Compl. ¶ 80.) Needless to say, launching civil discovery in parallel with these investigations will greatly complicate the discovery and potentially conflict with, and undermine,
these investigations in myriad ways not currently foreseeable.
Burden of discovery. Even apart from all the special concerns just discussed, there is every reason to expect that proceeding with discovery would impose undue burdens on the Campaign. Plaintiffs themselves appear to view this litigation as a “vehicle for discovery.” Supra 3.
And Judge Huvelle described Plaintiffs’ requests for discovery in their earlier lawsuit as an “illdefined,” “overly broad,” “not narrowly tailored,” “wide-ranging,” “thinly-veiled,” “speculative,”
“overreaching” “fishing expedition.” Cockrum, 319 F. Supp. 3d at at 187–89.
Plaintiffs’ first set of discovery requests proves the Campaign’s point. As already noted,
Plaintiffs have demanded documents from the “Campaign,” but have defined “Campaign” to include “any past and present parents, subsidiaries, affiliates, predecessors, successors, employees,
independent contractors, officers, agents, advisors, vendors, accountants, and all other persons or
entities acting on its behalf or under its direct or indirect control, whether paid or unpaid.” (Ex. 1
at 2.) Plaintiffs’ definition purports to cover documents controlled by the President, numerous
high-ranking government officials, and a multitude of campaign vendors, workers, and unpaid
volunteers. The burden is self-evident.
Plaintiffs’ particular requests only make matters worse. For example, one request demands “all documents relating to the 2016 DNC Hack” (with “relating to” defined as “refers to,
contains, embodies, mentions, supports, corroborates, bolsters, demonstrates, proves, evidences,

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shows, refutes, negatives, diminishes, disputes, rebuts, controverts, contradicts, describes, reflects, analyzes, interprets, or summarizes”). (Ex. 1 at 2, 6.) Another demands “all documents
relating to the … the release, amplification, promotion, or distribution … of e-mails or other
documents … taken from the DNC in the 2016 DNC Hack.” (Ex. 1 at 6.) Of course, the 2016
DNC hack and WikiLeaks’ publication of the DNC’s emails were major news stories during the
2016 election campaign. One would expect that people in the political world to have discussed
these stories. Yet Plaintiffs want everything that even mentions the DNC or any of its emails. It
would be bad enough to impose such wildly unreasonable burdens after a court decides that a
case should advance beyond the pleading stage, but, in this case, Plaintiffs seek to impose them
even before they have survived a motion to dismiss. There is no justification for allowing Plaintiffs to do so.
B.

A stay of discovery would promote judicial economy

Proceeding to discovery would also undermine “interests of judicial economy.” Gibbs,
331 F. Supp. 3d at 525.
Discovery disputes. As Judge Huvelle recognized, this is “not a routine” case, and proceeding to discovery here would “draw this Court into endless discovery disputes.” 319 F. Supp.
3d at 189. Even Plaintiffs are forced to concede that any discovery here “will almost certainly
create complex discovery issues and, by any realistic assessment, disputes.” (Dkt. 72 at 26.) That
understates the point. Here are a few examples of the serious, complex, and in some cases constitutional questions that the Court would have to decide if it proceeds to discovery:
•

May the Court force the President to sit for a deposition? The Vice President? A Cabinet Secretary? Senior White House advisors?

•

Does Article II of the Constitution allow discovery about the President’s exercise of
his foreign-affairs powers? His interactions with foreign leaders and foreign ambassadors? His removal of executive officers?

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•

Do Article II and the Presidential Transition Act of 1963 allow discovery about a
President-Elect’s official transition activities?

•

Does the First Amendment allow discovery of a list of the Campaign’s advisors and
consultants? Its internal communications? Its strategy memos? Its communications
with surrogates? Its communications with the Republican Party?

•

Does the requirement to submit a privilege log apply to the First Amendment right
against compelled disclosure of protected associational activities? Does such an application of the requirement itself violate the First Amendment? Does it violate the
principle that a constitutional right can be waived only through the right-holder’s affirmative, knowing, and voluntary consent?

•

May Plaintiffs compel disclosure of the President’s tax returns?

It makes no sense to start working through these disputes now, before the Court has decided the motion to dismiss. For one, the principle of constitutional avoidance directs courts to
decide constitutional questions only when necessary. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 (Brandeis, J., concurring). Until the Court rules on the Campaign’s motion
to dismiss, there is no need to address these complex constitutional questions about the scope of
discovery; after all, if the Court grants the motion to dismiss, any discussion of these constitutional issues will turn out to be unnecessary. For another, many of these legal questions require
the Court to balance, among other factors, the legal strength of the plaintiff’s claim. See, e.g.,
Cheney, 542 U.S. at 386 (separation-of-powers concerns preclude discovery against the President
on “meritless claims”); Perry, 591 F.3d at 1165 (First Amendment precludes compelled disclosure of campaign materials where the plaintiff lacks a “sufficient” “interest in obtaining the disclosures”). A court thus cannot meaningfully evaluate these legal questions until it decides
whether the claims can survive a motion to dismiss.
Third-party discovery. It gets worse. Denying a stay would likely embroil the Court in
complex, multinational, third-party discovery. For example:

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•

Discovery from Russia and Russian nationals. The Amended Complaint includes allegations about “Russian General Staff Main Intelligence Directorate (GRU),” Russia’s “Deputy Foreign Minister” and “Foreign Minister,” the Russian ambassador to
the United States, a Russian “billionaire” and various Russian “oligarchs,” a “deputy
governor of Russia’s central bank,” and the “chairman” of a Russian state-owned
bank. (Am. Compl. ¶ 86-87, 93, 98, 101, 114, 116, 119, 144, 228, 252.) And Plaintiffs
have already sought discovery from the Campaign regarding a wide range of documents relating to “any Russian national.” (Ex. 1 at 5–9.)

•

Discovery from WikiLeaks. One of the central actors in Plaintiffs’ alleged conspiracy
is WikiLeaks, an organization that Plaintiffs describe as a “non-state hostile intelligence service.” (Am. Compl. ¶ 175.) WikiLeaks founder Julian Assange, another central actor in the alleged conspiracy, currently lives in the Ecuadorian embassy in London. (See id. ¶ 182.) And Plaintiffs have already sought discovery regarding documents relating to WikiLeaks. (Ex. 1 at 5–9.)

•

Discovery from the Democratic National Committee. The Amended Complaint alleges that Russia hacked the DNC’s computers. Addressing that allegation surely requires discovery into the Democratic National Committee’s computer operations.

These discovery efforts would generate further disputes for the Court to resolve. For example, the Court would have to address claims of sovereign immunity. It would have to decide
whether it may order foreign nationals to participate in depositions. It would have to determine
whether information about the DNC’s computers constitute trade secrets. See First Am. Compl.,
Democratic National Committee v. Russian Federation, No. 1:18-cv-3501, Dkt. 182 (S.D.N.Y.
2018) (DNC claiming, in parallel lawsuit brought by DNC about alleged collusion with Russia
and WikiLeaks, that materials on DNC computers constitute trade secrets). And on and on.
Appellate proceedings. In addition to consuming judicial resources, discovery would also
likely take up the resources of the appellate courts, and potentially delay progress in litigation
until those appellate courts have resolved the disputes. The courts of appeals “should … entertai[n] an action in mandamus” where the President, Vice President, and other senior federal officials “are the subjects of … discovery orders.” Cheney, 542 U.S. at 382. They should also “exercise [their] mandamus jurisdiction” to review discovery orders that undermine “First Amendment

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privilege.” Perry, 591 F.3d at 1158. Further, the Supreme Court has stepped in to enforce these
limits on civil discovery, for example by staying a recent order directing Secretary of Commerce
Wilbur Ross to sit for a deposition. See In re Department of Commerce, 139 S. Ct. 16 (2018).
In sum, a stay of discovery would promote judicial economy. It would defy common
sense to force this Court, the Fourth Circuit, and the Supreme Court to decide an endless stream
of discovery disputes and third-party-discovery disputes, before this Court has resolved whether
any discovery is even needed in the first place.
C.

A stay of discovery would cause no undue prejudice

A stay of discovery pending resolution of the motion to dismiss also would not cause any
unfair “prejudice to the non-moving party.” Gibbs, 331 F. Supp. 3d at 525. As an initial matter, if
a “complaint is deficient,” a plaintiff “is not entitled to discovery, cabined or otherwise.” Iqbal,
556 U.S. at 686. Rather, a plaintiff must “surviv[e] a motion to dismiss” to “unloc[k] the doors of
discovery.” Id. at 679–80. In other words: “A plaintiff with a largely groundless claim [should
not] be allowed to take up the time of a number of other people … [The motion-to-dismiss]
threshold … must be crossed before [a] case should be permitted to go to … costly and protracted discovery.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). This principle is so elementary that even Plaintiffs’ own press release predicted that “this matter will easily survive a
motion to dismiss and therefore allow discovery.” Supra 3 (emphasis added).
In addition, there is no urgent need to proceed to discovery. Deferring discovery will not
cause the evaporation of the Campaign’s documents. Nor will it lead to the loss of pertinent witness testimony. Nor, for that matter, do Plaintiffs have an interest in the immediate resolution of
their claims. Quite the contrary, Plaintiffs have themselves caused extensive delay. First, they
filed their previous lawsuit nearly a year after the alleged disclosure, just a few days before the
applicable statute of limitations expired. See Greenpeace, Inc. v. Dow Chemical Co., 97 A.3d
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1053, 1061 (D.C. 2014) (one-year statute of limitations for invasion-of-privacy claims in the District of Columbia). They chose to file the lawsuit in a district (the District of Columbia) that
lacked personal jurisdiction and in which venue was improper. See Cockrum, 319 F. Supp. 3d at
165. They also chose to assert diversity jurisdiction, yet failed to plead the citizenship of the parties in their complaint—thereby delaying the case by forcing Plaintiffs to file an Amended Complaint, and by restarting the motion-to-dismiss briefing schedule. See Motion to Dismiss,
Cockrum v. Donald J. Trump for President, Inc., No. 1:17-cv-1370, Dkt. 51 at 8. They then
caused further delay by filing an “untimely” “motion for jurisdictional discovery.” 319 F. Supp.
3d at 187. Together, Plaintiffs’ litigation choices delayed this case by about twelve months. Plaintiffs are thus in no position to demand expedition now.
Plaintiffs have argued that they will be prejudiced because the “clock is running on discovery under the standard timetable in this Court’s Scheduling Order, and because deferring discovery may unduly truncate the time for discovery. (Dkt. 72 at 1.) But those discovery timelines
can obviously be adjusted if and when the motion to dismiss is denied. In contrast, the harm to
the Executive Branch, to the Campaign, to the Mueller investigation, and to judicial economy
cannot be undone.
D.

Precedent supports granting a stay of discovery

Judge Huvelle’s decision in Plaintiffs’ previous lawsuit against the Campaign confirms
that the Court should grant a stay here. In that case, Judge Huvelle categorically rejected Plaintiffs’ efforts to conduct jurisdictional discovery before the resolution of the Campaign’s motion
to dismiss—refusing to “set coequal branches of the government onto a collision course” and to
get “draw[n] … into endless discovery disputes.” Cockrum, 319 F. Supp. 3d at 189. Judge Huvelle’s conclusions apply a fortiori here. If mere jurisdictional discovery in this case would lead
to interbranch conflict and mire the judiciary in endless discovery disputes, full-blown merits
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discovery would do so all the more. And if it was appropriate for Judge Huvelle to deny discovery outright, it is surely appropriate for this Court to take the lesser step of deferring discovery
until after resolution of the Campaign’s motion to dismiss.
The Fourth Circuit’s ruling in recent Emoluments Clause litigation leads to the same conclusion. In that litigation, the district court denied a motion to dismiss Emoluments Clause claims
against the President in his individual capacity, and refused to stay discovery. District of Columbia v. Trump, 2018 WL 5728678 (D. Md. Nov. 2, 2018). The Fourth Circuit, however, overrode
the district court’s decision and stayed all proceedings pending resolution of the appeal. In re
Donald J. Trump, No. 18-2486, Dkt. 9 (4th Cir. Dec. 20, 2018). The Fourth Circuit’s ruling is
highly pertinent here. The plaintiffs in the Emoluments Clause litigation proposed to conduct
discovery regarding the President’s finances, and Plaintiffs here likewise have highlighted the
President’s “tax returns,” “business relationships,” and “financial ties.” (Am. Compl. ¶¶ 136,
238.) If a stay was appropriate in that case even after the denial of the motion to dismiss, it is all
the more appropriate in this case pending the motion to dismiss.
The same result follows from Nwanguma v. Trump, 2017 WL 3430514 (W.D. Ky. Aug. 9,
2017), a lawsuit against the President and the Campaign regarding a disturbance at a campaign
rally. In that case, the district court denied a motion to dismiss, but stayed discovery against the
President and the Campaign “pending resolution of the interlocutory appeal.” Id. at *5. If a stay
was proper in Nwanguma pending resolution of the appeal, it is surely proper pending resolution
of the motion to dismiss itself.
II.

Plaintiffs’ Objections To A Stay Are Meritless
In the parties’ Rule 26(f) report, Plaintiffs make a series of objections to the Campaign’s

request for a stay. These objections all lack merit.

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First, Plaintiffs assert that separation-of-powers concerns are beside the point because
“the Campaign … is a private, not a governmental, entity.” (Dkt. 72 at 11.) Judge Huvelle, of
course, disagreed. She understood that the Campaign is a private entity, yet she explained that
proceeding to discovery in this lawsuit would “set coequal branches … onto a collision course.”
Cockrum, 319 F. Supp. 3d at 189. Judge Huvelle was right. The Campaign is a private entity, but
discovery in this case would affect more than just the Campaign. As already explained, Plaintiffs’
first set of discovery requests already defines the “Campaign” to sweep in the President, the Vice
President, a Cabinet Secretary, and many more high-ranking officials. And Plaintiffs’ Amended
Complaint is replete with allegations about the President’s meetings, finances, tweets, and official acts. To pretend that discovery will affect only private entities is to defy common sense.
Moreover, “it is no answer to these concerns to say that discovery [from the President and other
high-ranking officials] can be deferred while pretrial proceedings continue for [the Campaign]. It
is quite likely that, when discovery as to the [Campaign] proceeds, it would prove necessary for
[the President and other officials] to participate in the process. … Even if [the President and other officials] are not yet themselves subject to discovery orders, then, they would not be free from
the burdens of discovery.” Iqbal, 556 U.S. 662 at 685–86.
Second, Plaintiffs assert that discovery will not “necessarily violate the First Amendment,”
because a political campaign’s First Amendment privilege turns on “a multipart interestbalancing test.” (Dkt. 72 at 12.) Plaintiffs’ argument, however, just proves the Campaign’s point:
this Court cannot meaningfully evaluate the First Amendment issues in this case until after it resolves the motion to dismiss. The balancing test turns, in part, on whether the plaintiff has
“demonstrate[d] a sufficient need for the discovery to counterbalance [the] infringement” on
First Amendment rights. Perry, 591 F.3d at 1164. In the Campaign’s view, Plaintiffs have zero

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“need for … discovery” because their claims are all meritless and can be dismissed on the papers
without any discovery at all. How can the Court meaningfully evaluate this argument before the
motion to dismiss is resolved?
Third, Plaintiffs assert that the pendency of parallel criminal proceedings does not matter,
because “the Special Counsel is capable of alerting the Court … at the appropriate time” if discovery interferes with his investigation. (Dkt. 72 at 13.) Plaintiffs’ proposal would require the
Special Counsel, who surely has more important things to do, to monitor discovery in this case to
ensure that there is no interference. It would also require the parties to conduct discovery in fits
and starts—to commence discovery now, but to stop it later once the Special Counsel objects.
Needless to say, it is far more logical to stay discovery at the outset, before any interference with
such a critically important investigation occurs. In any event, Plaintiffs’ argument addresses only
one side of the issue. Criminal defendants and witnesses have their own interests in avoiding
parallel civil and criminal proceedings, and Plaintiffs’ proposal undermines those interests.
Fourth, Plaintiffs urge the Court to confront problems if and when they arise, using “case
management tools.” (Dkt. 72 at 8.) Where a plaintiff has not already survived a motion to dismiss,
however, “it is no answer to say” that a court can limit abuse of “the discovery process” using
“careful case management.” Twombly, 550 U.S. at 559. This “rejection of the careful-casemanagement approach” is especially important in lawsuits involving discovery against “Government officials.” Iqbal, 556 U.S. at 685. “There are no … checks in the civil discovery process”
that are adequate to safeguard such officials from improper discovery. Cheney, 542 U.S. at 386.
*

*

*

Even in ordinary litigation, courts routinely stay discovery pending resolution of a motion
to dismiss. There is all the more reason to do so in this extraordinary case. It is, after all, certain

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that discovery will impose severe burdens—on the President, on public officials, on the Campaign, and on the Court itself. Yet it is entirely hypothetical whether such discovery is even
needed in the first place, because the Court could still dispose of all of Plaintiffs’ claims on the
papers without any discovery. It makes no sense for this Court to “set coequal branches of the
government onto a collision course,” and to consume its own judicial resources deciding complex constitutional questions regarding discovery, merely because of the hypothetical possibility
that Plaintiffs could survive the motion to dismiss. Cockrum, 319 F. Supp. 3d at 189.
CONCLUSION
The Court should grant the Campaign’s motion to stay discovery pending resolution of
the Campaign’s motion to dismiss.

Dated:

January 11, 2019

Respectfully submitted,
/s/ Nikki L. McArthur
Michael A. Carvin*
Nikki L. McArthur (Virginia Bar No. 84174)
Vivek Suri*
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
(202) 879-3939
macarvin@jonesday.com
nmcarthur@jonesday.com
vsuri@jonesday.com

Jeffrey Baltruzak*
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
(412) 391-3939
jbaltruzak@jonesday.com

* Pro hac vice
Counsel for Donald J. Trump for President, Inc.

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CERTIFICATE OF SERVICE
I certify that on January 11, 2019, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will send a notice of electronic filing to all registered
parties.
Dated:

January 11, 2019

/s/ Nikki L. McArthur
Nikki L. McArthur
Counsel for Donald J. Trump for President, Inc.

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