Case 1:23-cr-00257-TSC Document 165 Filed 11/27/23 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.
Criminal Action No. 23-257 (TSC)
DONALD J. TRUMP,

Defendant.

OPINION AND ORDER

Before the court is Defendant’s Motion for Pretrial Rule 17(c) Subpoenas. ECF No. 99

(“Motion”). The subpoenas would require federal government officials to produce records

related to the House Select Committee to Investigate the January 6th Attack on the United States

Capitol (“Select Committee”). For the reasons set forth below, the court will DENY the Motion.

I. BACKGROUND

The Motion requests leave to issue subpoenas duces tecum to seven non-party

individuals:

(1) the Archivist of the United States at the National Archives and Records
Administration (NARA), (2) the Clerk of the House of Representatives, (3) the
current Committee on House Administration, which is the successor entity to the
January 6 Select Committee; (4) Richard Sauber, the Special Counsel to the
President; (5) Johnathan Meyer, the General Counsel of the Department of
Homeland Security; (6) Representative Barry Loudermilk, U.S. House of
Representatives; and (7) Representative Bennie Thompson, U.S. House of
Representatives.

Id. at 1.

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Defendant’s proposed subpoenas center on certain purportedly “Missing Materials” from

the Select Committee’s archives. 1 See infra Section III.A (discussing Defendant’s definition of

“Missing Materials”). The subpoenas group the requested records into six categories:

1. The Select Committee Missing Materials.

2. Records and communications regarding methods, practices, instructions,

litigation holds, and/or policies regarding transfer, retention, archiving, or
destruction of the Select Committee Missing Materials.

3. Records and communications regarding the loss or destruction of the Select

Committee Missing Materials.

4. Communications with the Department of Justice or other law enforcement

agencies related to the Select Committee Missing Materials.

5. Records and communications relating to any accommodations or agreements

with the Executive Branch, including the Department of Justice, Department of
Homeland Security, and White House, regarding the Select Committee Missing
Materials.

6. Any other documents, communications, or records in any way pertaining to the

Missing Materials.

Motion at 5; see, e.g., ECF No. 99-5 at 4.

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 17 governs the issuance of subpoenas in criminal

cases. Under its subsection (c), the court “may direct that books, papers, documents or objects

designated in the subpoena be produced before the court at a time prior to the trial.” United

States v. Nixon, 418 U.S. 683, 698 (1974) (quoting Fed. R. Crim. P. 17(c)). That subsection was

“not intended to provide a means of discovery for criminal cases,” but rather “to expedite the

trial by providing a time and place before trial for the inspection of subpoenaed materials.” Id. at

698–99 (citations omitted). Accordingly, Rule 17(c) subpoenas are not appropriate where the

1
The Motion also refers to the “Missing Materials” as the “Missing Records.” See Motion at 2.

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moving party seeks materials “procurable reasonably in advance of trial by exercise of due

diligence,” or operate “as a general ‘fishing expedition.’” Id. at 699–700. “Courts must be

careful that rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict

limitation of discovery in criminal cases found in Fed. R. Crim. P. 16.” United States v.

Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980).

A pre-trial Rule 17(c) subpoena “must clear three hurdles: (1) relevancy; (2)

admissibility; [and] (3) specificity.” Nixon, 418 U.S. at 700. “The first prong of this test—

relevance—requires the Court to assess whether the documents sought have ‘any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.’” United States v. Libby, 432

F. Supp. 2d 26, 31 (D.D.C. 2006) (quoting Fed. R. Evid. 401). “If the documents are deemed

relevant, the Court must then determine whether they would be admissible. This inquiry is

largely governed by the Federal Rules of Evidence.” Id. (citing Fed. R. Evid. 401–415, 801–

807). Finally, the request must specify the records sought: While it may sometimes be

impossible to “describe fully” the materials being sought, “courts will not approve a subpoena

for documents based upon requests for disclosure from broad categories of documents.” Id.

(citing Nixon, 418 U.S. at 700; United States v. North, 708 F. Supp. 402, 404 (D.D.C. 1989)).

“The burden of showing these standards” are met falls “on the party requesting the information.”

Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 386 (2004) (citing Nixon, 418 U.S. at 699).

III. DISCUSSION

Defendant has not met his burdens with respect to his proposed Rule 17(c) subpoenas.

He has not sufficiently justified his requests for either the “Missing Materials” themselves or the

other five categories of documents related to them.

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A. “Missing Materials” category

Defendant’s proposed subpoenas define “Missing Materials” as certain records and

communications that the Select Committee sent to the Executive Branch, including those

“transmitted pursuant to the Sauber [ECF No. 99-3] and Meyer [ECF No. 99-4] letters dated

December 30, 2002,” as well as “the temporary committee records identified in footnote 1 of the

Thompson letter [ECF No. 99-2].” ECF No. 99-5 at 2. “At a minimum,” Defendant asserts,

those records include several subcategories:

[A] video recordings or [B] other transcriptions of witness interviews, [C]

intelligence and other law enforcement information available to the Secret Service,
[D] records identifying witnesses, and [E] other information the Select Committee
deemed private or operational details pursuant to agreements with the White House
and Department of Homeland Security. If the materials returned to the White
House and Department of Homeland Security encompass [F] more materials than
described in the letters, [“Missing Materials”] also includes those materials.

Id.

According to the letters Defendant cites, however, the Select Committee did not actually

send any material under most of those subcategories. As the Government notes, the Sauber and

Meyer letters describe transmitting only written transcriptions of witness interviews, not any

other records. Sauber Letter, ECF No. 99-3 at 1 (transmitting only “interview transcripts”);

Meyer Letter, ECF No. 99-4 at 1, 2 (transmitting only “interview transcripts”); see Opp’n to

Motion, ECF No. 119 at 6. And the Thompson letter’s first footnote only identifies written

transcripts of interviews, along with corresponding video recordings. Thompson Letter, ECF

No. 99-2 at 1 n.1 (mentioning “video recordings of transcribed interviews or depositions” and

their “written transcripts”); see Opp’n to Motion at 6. Thus, between what the Sauber and

Meyers letters transmitted and what the Thompson letter footnote described, the subpoenas’

definition of “Missing Materials” only reaches the (A) and (B) subcategories noted above.

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Defendant does not contest that conclusion. See Reply in Support of Motion, ECF No. 127. The

court accordingly need not consider the remaining subcategories.

With regard to the subpoena duces tecum for the written interview transcripts—

subcategory (B)—the Government represents that it “obtained these materials from the Select

Committee, the White House, and the Secret Service, and it produced them to the defendant in its

first discovery production more than two months ago,” itemized in a source log. Opp’n to

Motion at 6. Defendant does not dispute that report. See Reply in Support of Motion. The

written transcripts are thus “procurable reasonably in advance of trial by exercise of due

diligence” and therefore a Rule 17(c) subpoena for those transcripts is unnecessary. Nixon, 418

U.S. at 699.

That leaves subcategory (A), the video recordings of the Select Committee witness

interviews, the written transcripts of which have already been produced to the defense.

Defendant has not established their relevance. The Motion suggests that the recordings could be

used for the “[i]mpeachment of witnesses.” Motion at 9. “Evidence that can impeach a

witness’s memory and truthfulness, and therefore credibility, would be relevant.” United States

v. Fitzsimons, 342 F.R.D. 18, 20 (D.D.C. 2022) (citation omitted). But Defendant provides no

basis for concluding that the video recordings contain any such impeachment evidence. “This

falls well short of his burden. The relevance prong is not satisfied merely because a defendant

can articulate what they hope to find in the subpoenaed evidence.” Id. at 21; see Libby, 432 F.

Supp. 2d at 34–45 (quashing Rule 17(c) subpoenas “simply seeking to examine general

categories of documents with the hope that they contain information that may be helpful”).

Rather, the movant must make “a sufficient preliminary showing,” Nixon, 418 U.S. at 700, to

allow the court to find “a reasonable likelihood the documents contained relevant evidence,”

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Fitzsimons, 342 F.R.D. at 21. For example, Defendant could have used the written transcripts of

the interviews which he already possesses to identify particular portions of video recordings

where “a witness’s demeanor, tone, and expression” would likely provide impeaching evidence,

Reply in Support of Motion at 4 n.2; or he could have proffered some other reason to believe that

the video recordings would do so. The Motion does not even make that attempt. Accordingly,

Defendant has not carried his burden in justifying the issuance of the subpoenas with respect to

any of the “Missing Materials.” 2

B. Remaining five categories

Defendant likewise fails to meet his burden for the remaining five categories of records

that he seeks. Those categories cover documents and communications “in any way pertaining to

the Missing Materials,” including their storage, loss, or transfer. See Motion at 5; id. at 8–9.

Defendant does not state with any specificity the information that he seeks in those records,

repeating only that it is important and related to the events and people associated with the Select

Committee’s work and therefore the January 6, 2021 attack. Id. at 9–11. The broad scope of the

records that Defendant seeks, and his vague description of their potential relevance, resemble

less “a good faith effort to obtain identified evidence” than they do “a general ‘fishing

expedition’ that attempts to use the [Rule 17(c) subpoena] as a discovery device.” United States

v. Binh Tang Vo, 78 F. Supp. 3d 171, 180 (D.D.C. 2015) (quoting Cuthbertson, 630 F.2d at 144);

see also id. at 181. “[I]f the moving party cannot reasonably specify the information contained

or believed to be contained in the documents sought but merely hopes that something useful will

2
The Government argues that the video recordings are categorically irrelevant at this time
because (1) the written transcripts render them “superfluous,” and (2) that seeking them before
the exchange of witness lists would be “at best, premature.” Opp’n to Motion at 7. Because
Defendant has failed to satisfy his initial burden, however, the court need not reach those two
arguments.

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turn up, this is a sure sign that the subpoena is being misused.” Libby, 432 F. Supp. 2d at 31

(quoting United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991)). Defendant has not

justified the issuance of a Rule 17(c) subpoena for the five additional categories of records

related to the “Missing Materials.”

IV. CONCLUSION

For these reasons, the court hereby DENIES Defendant’s Motion for Pretrial Rule 17(c)

Subpoenas, ECF No. 99.

Date: November 27, 2023

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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