The “Continue Withholding” Directive in Trump v. United States

Late last month, the Supreme Court granted certiorari in Trump v. United States, in which the Court will decide whether the former president has immunity from criminal prosecution. The order granting certiorari generated lots of commentary, mainly related to its implications for the presidential election and for the Court’s formulation of the question presented. Less attention has been paid to other aspects of the order granting certiorari: the Court’s statement that it was expressing no view on the merits; the Court’s unusual directive to the U.S. Court of Appeals for the D.C. Circuit to “continue withholding issuance of [its] mandate” until the Supreme Court hands down its judgment; and the Court’s dismissal of former President Trump’s request for a stay of the court of appeals order as “moot” in light of the “continue withholding” directive. 

What follows is our attempt to work through several technical, in-the-weeds puzzles about the nature of and legal basis for these aspects of the order. We doubt that these puzzles have practical relevance to the case. The Court almost certainly had authority to issue the “continue withholding” directive even if its precise legal basis is unclear. And we doubt that if the Court had granted certiorari but not included these elements in the order, the lower courts would have sought to proceed with the criminal trial while Trump’s immunity claim was under review in the Supreme Court. Delving into the details is nonetheless a useful exercise—or at least has been for us. It sheds light on some unanswered questions involving the arcane workings of the Supreme Court’s emergency docket.

Background

On Feb. 6, the D.C. Circuit rejected former President Trump’s argument that he was immune from prosecution for any criminal acts committed while in office. In the judgment accompanying the opinion, the D.C. Circuit panel “ORDERED and ADJUDGED that the order of the District Court appealed from in this cause be affirmed, in accordance with the opinion of the court,” but it further directed the clerk of the court to “withhold issuance of the mandate through February 12, 2024.” 

A mandate in this context is an appellate court’s directive to a lower court to take action; it consists of a certified copy of the judgment and a copy of the court’s opinion. Rule 41 of the Federal Rules of Appellate Procedure contemplates that the court of appeals can stay its mandate pending a petition for certiorari at the request of a party—a request Trump made in his opening brief in the D.C. Circuit. (The D.C. Circuit has equated Rule 41’s provision for stays pending certiorari with orders to withhold issuance of the mandate.) The judgment further specified that if Trump sought a stay from the Supreme Court pending the filing of a certiorari petition, the clerk should continue to “withhold issuance of the mandate pending the Supreme Court’s final disposition of the [stay] application,” but it added that the filing of a rehearing petition in the D.C. Circuit “will not result in any withholding of the mandate.”

On Feb. 12, Trump filed an application with the Supreme Court seeking to “stay the D.C. Circuit’s mandate” pending his filing of a petition for certiorari. The Trump team argued that the standard criteria for granting a stay from the Supreme Court—including the likelihood that the Court would grant certiorari and reverse the D.C. Circuit on the merits—were satisfied. The special counsel opposed the stay, in part on the ground that Trump lacked the requisite “fair prospect of success” in the Supreme Court. The special counsel asked in the alternative that the Court treat Trump’s application as a certiorari petition, grant review, and expedite the case.

The Court in response issued an order that (a) granted certiorari, (b) reformulated the question presented, (c) directed the D.C. Circuit to “continue withholding issuance of [its] mandate” until the Court hands down its final judgment, (d) stated that the order expressed no view on the merits, and (e) dismissed Trump’s stay application as moot. This post focuses on elements c, d, and e.

The Nature of the “Continue Withholding” Directive

We cannot find any square precedent for the Supreme Court’s order to a lower court to withhold the issuance of that court’s mandate. (Given the difficulty of researching obscure emergency orders, we very well may have missed a precedent.) The Court has withheld issuance of its own mandates. It has “stayed” the issuance of lower federal courts’ and state courts’ mandates. And it has denied requests to “stay” the issuance of a lower court’s mandate. But our research has not turned up a past instance of the Supreme Court directing a lower court to “withhold issuance” of its own mandate.

The first puzzle here is whether this order differs from a stay. The Supreme Court seemed to go out of its way to indicate that it was not issuing a stay when it used the language of “withholding the mandate”; when it ruled that Trump’s stay request was moot; and, perhaps, when it stated that it was not implying anything about the merits, which a stay order typically does, since at least a “fair prospect” that the Court will reverse the judgment below, and perhaps even a “likelihood of success on the merits,” is needed for a stay. (Both the precise standard for a stay in the Court and whether there is a meaningful difference among the potential standards are unclear; but some merits consideration is typically involved under all the relevant standards.)

Yet the Court’s order appears to have the same practical effect as a stay of the mandate: The D.C. Circuit’s order cannot go into effect, pending the Supreme Court’s review. As the Court explained in Nken v. Holder, an appellate court’s stay of a lower court’s order temporarily “hold[s]” that order “in abeyance pending review.” Here the order the Supreme Court held in abeyance is the D.C. Circuit’s order affirming the district court. The D.C. Circuit had already stayed that order by directing the clerk of the court to withhold its issuance temporarily. (As noted above, the D.C. Circuit treats “withhold orders” as stays.) By directing the D.C. Circuit to continue withholding its order affirming the district court, the Supreme Court achieved the same result as a stay.

The Legal Bases for the “Continue Withholding” Directive

The next question concerns the legal basis for the “continue withholding” directive. Below we examine several. None provides obvious grounds for the order.

28 U.S.C. § 2101(f)?

Since the order was not labeled a stay but functioned an awful lot like a stay, we start with the legal bases for stays. The first is 28 U.S.C. § 2101(f), which provides: “In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court.”

This provision cannot have been the legal basis for the Court’s directive for two reasons. First, the statute authorizes “stays,” but the Court did not formally issue a stay. Second, as the statute’s text makes clear, and as Justice Antonin Scalia observed in an oft-cited 1986 in-chambers opinion, “only the execution or enforcement of final orders ... is stayable under § 2101(f).” The D.C. Circuit’s Feb. 6 order was not a final order. It disposed of Trump’s “interlocutory appeal” on the immunity question.

All Writs Act?

Next, consider the All Writs Act (AWA), 28 U.S.C. § 1651. It states: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The AWA authorizes the Court to stay interlocutory lower court orders. But there are three problems here. One, as noted, is that the Court’s order, though it functioned like a stay, was not labeled a stay. Second, and relatedly, success on the merits is a central criterion for a stay under the AWA; but the Court said it was not “expressing a view on the merits.” (To be sure, the Court and individual justices have sometimes said that they are not expressing a view on the merits in issuing or denying relief that appears to require some assessment of the merits.) Third, the directive is not obviously “agreeable to the usages and principles of law.”

The closest writ “agreeable to the usages and principles of law” that might not require a showing of likelihood of success on the merits appears to be the writ of supersedeas. That writ suspends “the power of the court below to issue an execution on the judgment or decree appealed from.” But that writ traditionally hinged on the posting of a bond. Prior to 1948, under what was then 28 U.S.C. § 869 and § 874, an appellant would “obtain a supersedeas” by appealing the judgment below and “by giving ... good and sufficient security … for the prosecution of the appeal, and for all damages and costs if he fail to make his plea good.” And more than a bond was required when seeking a writ of supersedeas from the Supreme Court pending certiorari or after it had been granted. As Robertson and Kirkham’s 1936 treatise on the “Jurisdiction of the Supreme Court of the United States” explains, “in order to secure [the writ from the Supreme Court], a strong showing must be made not only as to the need for and propriety of such relief, but that the case is one in which probable grounds exist for the issue of the writ of certiorari.” The revisions of the Judicial Code in 1948 left the requirements for a writ of supersedeas “to be covered by the Supreme Court’s rules.” Rule 23.4 provides that stays may be conditioned “on the filing of a supersedeas bond.” No such condition was imposed in Trump v. United States, and the Court gave no other indication that it was issuing a writ of supersedeas. 

But perhaps the Court took a casual attitude toward the “agreeable to the usages and principles of law” requirement. Although the Court has said it must “look first to the common law” to determine whether a writ is “agreeable to the usages and principles of law,” it has stressed—in the habeas context—that the usage need not have been “in vogue at the common law or in the English judicial system,” and that the AWA is not “an ossification of the practice and procedure of more than a century and a half ago.” Rather, it “is a legislatively approved source of procedural instruments designed to achieve ‘the rational ends of law.’” Still, given its novelty, the “continue withholding” directive is not obviously the sort of “familiar procedure[]” or “historic aid[]” that the AWA preserved.

Inherent Authority?

A passage from the Court’s opinion in Nken v. Holder alludes to what might be a distinct legal basis for the Court’s order in Trump v. United States. Nken stated (with emphasis added):

An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as “inherent,” preserved in the grant of authority to federal courts [in the All Writs Act] to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

This passage says that the ultimate power to “hold an order in abeyance” rests on the Court’s “inherent power,” which refers to Article III, the Supreme Court’s power as a court, or both. Though Nken may have had a stay in mind here, it used different language, and a stay is not necessarily the only way to hold an order in abeyance. Nken adds that the power to hold an order in abeyance is “preserved in,” but not necessarily limited by and not derived from, the AWA. Nken relied on In re McKenzie, which (with emphasis added) referred to “the inherent power of the appellate court to stay or supersede proceedings on appeal” and described this power as one that enables “the appellate court to render its jurisdiction efficacious.”

It is possible that the Court in its Trump v. United States “continue withholding” directive relied—in part or in whole—on its inherent power to “hold an order in abeyance,” in the words of Nken. This might explain why it did not use the language of “stay” and why it could nonetheless dismiss the request for a stay as moot. And it might also explain why the Court could indicate that it had not taken any view of the merits in issuing its order. For the Court’s inherent power to hold a lower court order in abeyance in this context might not turn on the traditional stay factors, including a preliminary merits assessment (whether filtered through the “fair prospect” of reversal standard or the “likelihood of success on the merits” standard). Indeed, since the Court granted certiorari on a potentially dispositive interlocutory issue in the same order, it is natural to see its directive to the D.C. Circuit as, in the words of McKenzie, part of an inherent power needed to “render [the Court’s] jurisdiction efficacious” without any need to take a view on the merits.

The exercise of inherent power here might imply that the Court’s power to issue orders like the “continue withholding” directive is not always limited by the “usages and principles” language of the AWA. But perhaps the Court’s order need not be read to have such expansive implications. The Court asserted only the narrow power to order a lower appellate court to continue withholding its mandate pending the disposition of an important interlocutory issue that the Court had decided to review.

Trump v. United States is an unusual case where there were good reasons to grant certiorari—the case raised “an important question of federal law that has not been, but should be, settled by [the] Court”—even though the petitioner had not formally sought certiorari and the petitioner’s likelihood of success may be low. (Remember that it was the special counsel who, in the alternative, urged the Court to grant review.) Once the Court granted review due to importance but not necessarily because it thought it would reverse, it was a tiny assertion of inherent power (if it was that) to keep the lower courts frozen pending the Court’s review. 

The “Griggs” Jurisdictional Principle?

The Supreme Court Practice treatise states that neither the filing nor the granting of a certiorari petition “operates as a stay of the execution of the judgment below or of the issuance of the mandate below.” The Supreme Court has long stated the same. So, without doing more, the grant of certiorari in Trump v. United States would not have stayed the D.C. Circuit’s order affirming the district court. But it is possible, under the “Griggs principle,” that the Court’s grant deprived the lower federal courts of jurisdiction to proceed.

Griggs v. Provident Consumer Discount Co. (1982) holds (with complications not relevant here) that an appeal from a federal district court to a federal court of appeals (including an interlocutory appeal) “divests the district court of its control over those aspects of the case involved in the appeal,” mainly because the two courts cannot “assert jurisdiction over a case simultaneously.” More recently, a sharply divided Court in Coinbase v. Bielski (2023) affirmed this principle and added that when the “entire case” is involved in an interlocutory appeal (like an appeal regarding qualified immunity, for example), the district court must stay its proceedings while that appeal proceeds. If this logic in the hierarchical relationship between lower federal courts applies when the Supreme Court grants certiorari, then the court of appeals and the district court would have lacked jurisdiction to proceed and the court of appeals would have been under a duty to stay its proceedings (including the issuance of the mandate) once the Court granted certiorari on the immunity question in Trump v. United States. So maybe it was the grant itself that mooted the stay application by depriving the courts below of jurisdiction to move forward with the trial. 

There are at least two complications with grounding the Court’s “continue withholding” directive in the Griggs principle.

First, if Griggs were the basis for the cessation of proceedings below, then the Supreme Court’s order to the D.C. Circuit to continue withholding its mandate was unnecessary. The logic of Griggs suggests that the lower courts would be under an automatic duty to stay proceedings. Yet the “continue withholding” directive connotes a coercive order directed to the court of appeals, not a jurisdictional defect in the courts below. Perhaps the Court had Griggs in mind and in an excess of caution sought to make sure—in a context where the decision to freeze or continue the trial is of monumental importance—that the court of appeals got the message. But if Griggs were the basis, the Court should have said that the courts below lacked authority to proceed and cited Griggs. 

Second, it is very far from established that the Griggs principle applies when the Court grants certiorari. The Court has never publicly addressed the question. In supplemental briefing last term in Moore v. Harper, the solicitor general noted that the Griggs rule “may apply in certain circumstances when this Court grants a writ of certiorari.” But the solicitor general did not have a “definitive view” on the issue. And the Court’s decision in Moore v. Harper casts doubt on the applicability of Griggs to grants of certiorari. The North Carolina Supreme Court had granted rehearing and issued a new decision after the Supreme Court granted certiorari, and the Supreme Court did not question this move—although supplemental briefs addressed the issue—when it ruled that these developments did not deprive the Supreme Court of jurisdiction to proceed in the case. Moore v. Harper might be distinguishable from Trump v. United States since it reviewed a state court decision and the Court’s supervisory authority may be different in that context than with respect to lower federal courts. But the Supreme Court long ago suggested that the interaction between grants of certiorari and stays of mandates is the same whether the case under review comes from a federal or state court. Presumably the same would apply with respect to Griggs and the deprivation of jurisdiction below.

There are other reasons why the Griggs principle might or might not apply in the certiorari context, including the distinct statutory regime governing the Supreme Court’s nearly exclusive discretionary appellate review, the relationship between statutory certiorari and common law certiorari, and more. For now, it suffices to say that Griggs might have been a basis for the lower court proceedings to stop, but Griggs is not an established principle for grants of certiorari, and the logic of Griggs is not consonant with the language of the directive.

The Significance of the Lower Court Orders

Some observers might contend that the lower court orders in the case themselves precluded the district court from moving forward with the trial until the Supreme Court finally disposed of Trump’s immunity argument. We are not convinced.

The D.C. Circuit directed the clerk of the court as follows: If Trump “notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application.” There is an ambiguity here: Did the Supreme Court finally dispose of Trump’s stay application pending the filing of a petition for certiorari when it treated it as a certiorari petition, granted that petition, and then dismissed the stay application as moot? Or is the “final disposition” the Court had in mind the final ruling on the merits of Trump’s immunity claim? We think the most natural reading is the former one, since Trump never filed a certiorari petition and since the Court ruled definitively on the stay application. This reading would explain why the Supreme Court felt compelled to direct the court below to continue withholding its mandate. But even if the latter reading is the right one, the court of appeals would have been free in theory to change its mind, and the puzzle of the legal basis for the Supreme Court’s “continue withholding” directive would persist. 

Similarly, when Judge Tanya Chutkan issued a stay of her order and when she clarified its scope, she never mentioned anything regarding a certiorari petition or Supreme Court disposition of the immunity question. All that Judge Chutkan said was that substantive pretrial motions would resume and the trial itself would commence “if and when the mandate is returned” to the district court. The whole question, then, is what legal rule suffices to effectuate or prevent the return of the mandate to the district court. 

Of course, as a practical matter, the court of appeals almost certainly would have not issued the mandate, and Chutkan in any event almost certainly would have not gone forward with the trial, while the Supreme Court considered the immunity question. But that is irrelevant to assessing the nature and legal basis of the Court’s “continue withholding” directive and, indeed, just underscores the puzzle of why the Court issued the directive, and on what basis.

Conclusion

Once the Court decided to grant certiorari in Trump v. United States, it faced the tricky question of whether the D.C. Circuit’s order affirming the district court’s judgment should be stayed. If the Court had declined to stay the order, the trial might have begun before the Court had a chance to rule on whether the government was authorized to try Trump. But if the Court had granted a stay, that might have implied that a majority of the Court thought petitioner Trump was likely to succeed on the merits even though the Court might not have thought that or might not have wanted to signal that. It seems that for these reasons, the Court granted certiorari but dismissed the stay application as moot, and ordered the mandate below to continue to be withheld. 

None of the possible bases for the “continue withholding” element of the order, considered alone, is entirely convincing:

• It cannot be § 2101(f) because the order below is not final. 
• It might be the All Writs Act. But it is probably not a stay under the act, because the Court did not use the language of stay and denied that it had prejudged the merits. It is probably not a writ of supersedeas under the act because the relief was not conditioned on the posting of a bond and the Court did not mention supersedeas. Any other form of order under the AWA seems hard to square with its “usages and principles of law” requirement. 
• It might be inherent authority. But that appears to be a novel basis for a directive of this sort and might imply a much broader power to stop lower court proceedings than the Court has until now recognized.
• Or it might rest on the Griggs principle. But the Griggs principle is not formally established in the certiorari context, and it is hard to square with the language of the directive. 

This is all speculation because the Court’s sparse order did not explain any of this. Some commentators view this failure to give reasons for decisions as a vice of emergency orders. Without knowing the legal basis for the Court’s very important decisions behind the emergency order, or the standards that guided the Court, citizens cannot competently assess the Court’s work, or ensure that it complied with the law.

But others see the failure to give reasons as a virtue of emergency order decision-making. On this view, a full public explanation of the basis for the almost-certainly lawful but perhaps unprecedented “continue withholding” directive would have taken even more time to produce than the 16 days it took to issue the emergency order and might not have garnered unanimous agreement. The Court (or a majority of it—dissents are not always noted on the emergency docket) might have decided that some combination of the legal authorities above sufficed, especially with the possibility of inherent power in the background, and that the need for speed in the face of a high-stakes emergency request outweighed the need for explanation, especially since this route enabled the Court to proceed to the merits in a sensitive context without implying anything about its views of the merits.