It might be hard to keep track of all the different criminal cases Trump is facing, but this is the one in Washington, D.C. where Jack Smith is trying to criminalize challenging an election, in an effort to lock up Joe Biden’s most likely challenger. You know, to protect Democracy or something.
(Of course, it is possible that someone else might end up being the Republican nominee, but we think it is safe to say that is not very likely—so this author is going to treat Trump as the presumptive nominee.)
The case was on hold because of what is known as an interlocutory appeal. Normally, no appeal happens until the case ends in the trial court, a.k.a. the district court. But sometimes it makes sense for the courts to hear an issue before the case is done. That’s an interlocutory appeal. Here, they were hearing Trump’s claim that he was immune from prosecution or that it violated double jeopardy, presumably because if Trump won on those issues, the case might partially or completely go away.
We haven’t examined the entire argument and some of what we heard about the oral arguments made it sound like Trump’s claim was going too far. But immunity is not unheard of. For instance, in every American jurisdiction we are aware of, judges have absolute immunity for their official actions. A judge could literally issue a restraining order explicitly defying the Supreme Court and restraining protected speech, and there still would be no possibility of any kind of criminal or civil liability for that action. To take it to an even more ridiculous extreme, a judge could officially rule that a pretty defendant has to sleep with him and throw her in jail for refusing, and there would be no liability because that would involve a ruling of the court.
Because the idea is that if every decision by a judge can open the door to criminal or civil liability, then lawfare could be used to effectively tie the judiciary in knots. But frankly that argument has a similar appeal when we are talking about the President of the United States, or a former president, or a candidate for President (and of course Trump is two of those things right now). Indeed, the argument is strengthened by just how many criminal cases and civil suits Trump is being subjected to right now. With the E. Jean Carroll case, basically every time Trump is asked if he raped her and he denies it, apparently Carroll gets another $80 million or so. This is despite the fact that we believe she has no credibility, for reasons we laid out here.
Oh, by the way, why does judicial immunity exist? Because they said so. So, you can’t sue judges for doing their job because the judges said so. Isn’t that convenient that they handed out such strong immunity to themselves?
Whatever the merits of Trump’s argument for immunity—and we haven’t read the case or paid enough attention to be sure of the merits—or his double jeopardy claims, Trump lost that interlocutory appeal today. Via the indispensable Jonathan Turley:
In a 57-page opinion, the D.C. Circuit has rejected, as expected, former President Donald Trump's sweeping immunity claim. Many of us anticipated this result. Here is the opinion https://t.co/w3Uo1jfJJz
— Jonathan Turley (@JonathanTurley) February 6, 2024
Recommended
But as the title of this piece promised, Trump might still win just getting this amount of a delay, as revealed by this follow up thread:
...Crunching the numbers, Trump can seek corrections in the short term but, even without a correction to the opinion, he has 45 days to seek an en banc where the government is a party. He then has 90 days after the rejected of any en banc decision. ...
— Jonathan Turley (@JonathanTurley) February 6, 2024
...So, even without factoring in review time for the circuit, Trump could extend this process 135 days absent a successful move to expedite. The 90 day period alone would put a petition into May. Any rejection of appeals, without an expedited calendar, puts this into the…
— Jonathan Turley (@JonathanTurley) February 6, 2024
The entirety of the cut off text is ‘summer.’ As in ‘Any rejection of appeals, without an expedited calendar, puts this into the summer...’
He continues:
...That is without delays or a successful grant on by the D.C. Circuit (unlikely) or the Supreme Court (uncertain). After that appellate line is tied off, the parties would have to return to the trial court to resume the pre-trial work, which could take months. That puts the…
— Jonathan Turley (@JonathanTurley) February 6, 2024
The cut off text is more substantial here:
That puts the trial very close to the election and would raise obvious concerns given the long-standing DOJ policy to avoid trials with a few months of an election.
Going on:
...While Smith will likely try again to expedite, the question is why the Supreme Court would suddenly see a need to curtail the time or process when it previously denied such efforts. There is no longer a scheduled trial on the docket and Smith is the prevailing party. That is…
— Jonathan Turley (@JonathanTurley) February 6, 2024
The cut off text: ‘That is not ideal for a motion to expedite further appeals.’
...Notably, in a footnote at the end of the decision, the panel declines look at the merits of the threshold challenge that "the appointment of Special Counsel Smith is invalid because (1) no statute authorizes the position Smith occupies and (2) the Special Counsel is a…
— Jonathan Turley (@JonathanTurley) February 6, 2024
The cut off text reads:
… and (2) the Special Counsel is a principal officer who must be nominated by the President and confirmed by the Senate.’
That it for now, but let’s back up and try to translate what he is saying, by explaining what en banc review is.
There are eleven judges on the D.C. Circuit. But today’s decision was only heard by three of those judges. That’s because in all federal circuits, the vast majority of the appeals they hear are heard by a three judge ‘panel’ of judges, who are chosen at random. But occasionally, a case is deemed appropriate for the entire circuit to hear the case. That is what is referred to as en banc review—meaning review by the whole court. They don’t have to take it, but Trump can ask.
He can also ask for the Supreme Court to consider it. They don’t have to take the case, either—in the vast majority of cases, the Supreme Court decides whether or not to take a case. But again, Trump can ask.
But the key thing is that Trump can ask for en banc review and then, if he’s not satisficed, seek Supreme Court review. The subtlety is that he can only appeal a loss of some kind, but that means Trump can wait for 45 days and then file the appeal at the last minute. If they refuse to take the en banc review, or if they actually do take the case and he loses to some degree, then he will have 90 days after that new decision to file a request with the Supreme Court to hear his case.
So, let’s war game this out. Let’s assume his lawyers wait 44 days to seek an en banc review, and then the D.C. Circuit immediately says ‘no’ within a single day. That is would be unusual—they would usually wait until Jack Smith is given a chance to respond and for them to get a chance to respond to him. And even then, they are likely to take longer than that to decide. But let’s pretend they say ‘no’ immediately on day 45. Then he goes to the Supreme Court 89 days later, and the Supreme Court is equally fast (even though it is even more unusual to be that fast in the Supreme Court). So that would be a total of 135 days, taking us to June 20, 2024. And that would be the first day that the District Court could begin to make preparations to have a trial.
Consider this post by ‘Shipwrecked Crew.’ He says he is a lawyer representing several January 6 defendants. But if he has ever given out his real name, we missed it, so we can’t 100% verify he is who he says he is. But he is accurately explaining some of what goes into trial preparation in the context of explaining why Trump’s D.C. trial has disappeared from the docket a few days ago:
Everyone posting theories about why the US v. Trump DC case was removed from the March 3 calendar -- which I noted here yesterday -- are making clowns of yourself. Your GUESSES are idiotic.
— Shipwreckedcrew (@shipwreckedcrew) February 2, 2024
Tomorrow was the day the Juror questionnaires were supposed to be returned to the Court…
The full text reads:
Everyone posting theories about why the US v. Trump DC case was removed from the March 3 calendar -- which I noted here yesterday -- are making clowns of yourself. Your GUESSES are idiotic.
Tomorrow was the day the Juror questionnaires were supposed to be returned to the Court by prospective jurors and given to the parties.
Was a questionnaire ever prepared? No -- the case has been stayed. So no questionnaires will be received.
There were procedures in place to review the questionnaires over the next several days, and each side was make requests as to which jurors to excuse without the need for them to come to court for jury selection.
None of that is happening.
Also, the logistics of bringing in several hundred prospective jurors is daunting. The DC District Court is not that big. Doing that requires a lot of preplanning by Court staff. Has any of that been done? Probably not.
Were juror summonses even sent out to several hundred prospective jurors -- maybe, or maybe not.
THESE are the NUTS AND BOLTS details of how a jury trial happens. You don't just have hundreds of people spontaneously walk through the door on the first day of trial as prospective jurors.
If none of it has taken place, then it has been a ‘given’ for weeks that the trial would not start as scheduled on 3/4.
But there was the possibility that 3/4 could have been used as the date to get the juror questionnaire sent out at least. But because Trump is not obligated to participate at all in trial prep activities while the case is pending on appeal, the questionnaire has never been done.
One of the first questions is ‘Do you have any plans that would make it impossible for you to be a juror from March 3 to May 3?’
Well, you can't send that out until you know what the start date will be.
So all you supposedly ‘In the know’ X-sters, just stop posting nonsensical conspiracy theories about why the Court -- NOT JACK SMITH -- removed the trial from the March 4 calendar.
This is an accurate description of some of the logistical difficulties faced by the courts in terms of setting up a trial, especially an extremely high profile one. And, of course, the judge will also need to accommodate difficulties faced by the parties, too.
So, to return to our war game, even if every court disposed of the request for review pretty quickly, that takes us to June 20, 2024 at the earliest. But, as we said, we would expect the courts to ask Jack Smith’s team to respond to any filings, and we expect some time taken to decide the question. Further, if the D.C. Circuit takes en banc review, or the Supreme Court decided to take the appeal, who knows how much time will be added. But Turley argues that barring some successful attempt to expedite the time to appeal, the case will be so close to the election that it will go against the norm of trying candidates just before an election.
Of course, norms are regularly violated in an effort to ‘get Trump,’ but dragging this case out might be Trump’s best gambit. It’s an ugly truth that we don’t think Trump can get a fair trial in D.C. We think the interests of justice should have led the court to change the venue to somewhere where he would get a fair trial, but that hasn’t happened. So, Trump’s best chance at winning the case is to push it back so long that he will (hopefully) win the election and then he can shut down the case himself. Some claim that a President can’t pardon himself, and Trump very well might put that to the test. But even without a pardon, Trump might be able to order the relevant persons to basically make the case go away. He might have to repeat Nixon’s ‘Saturday Night Massacre’ to do it, but if he has the testicular fortitude, he will be able to get it done.
Certainly, a delay strategy what is this author would recommend if we were his lawyer (although this is not legal advice). Of course, it is unethical for a lawyer to file an appeal purely for delay, but we presume his lawyers believe that there is merit to their appeals, and that the appeal continues to be meritorious. So, we expect them to file every appeal, and slow walk that process as much as possible.
Finally, it should be noted that the three judge panel did set a pretty short horizon to ask for a delay from the Supreme Court:
As @bradheath flags, the D.C. Circuit panel did *exactly* what we predicted on timing: Trump has until next Monday to ask #SCOTUS for a stay, otherwise the trial-court proceedings can resume.
— Steve Vladeck (@steve_vladeck) February 6, 2024
So the Supreme Court will have to decide next week whether it’s going to intervene now: pic.twitter.com/mYBTiqNG7i
And for those asking if Trump can seek en banc review, technically he can, but it won’t help to keep the lower-court proceedings on hold. The only way to do that is to go to #SCOTUS by next Monday.
— Steve Vladeck (@steve_vladeck) February 6, 2024
Except Mr. Vladeck is ignoring the very text of the document he presented. While a stay is not automatic, it is routine enough that it is expected. To back up a little, the mandate is basically the official way the circuit court tells the district court that they are done with the case. So, when they only offer to stay the mandate automatically if he goes to the Supreme Court, they seem to denigrate his right to seek en banc review before the D.C. Circuit. That is not likely to sit well with the entire court of appeals, or the Supreme Court.
Finally, Shipwrecked Crew had these additional thoughts on the case and the possibility of Supreme Court review:
Reading the DC Appeals Court decision. Lots of comments later but right now I’m headed for a cross-country flight so time is limited.
— Shipwreckedcrew (@shipwreckedcrew) February 6, 2024
Initial impression:
“We beg you, Justices of the Supreme Court, please take this nightmare off our hands.”
This thing is written in a way…
You read it here first:
— Shipwreckedcrew (@shipwreckedcrew) February 6, 2024
At least 4 SCOTUS justices will not allow the final word on the “public policy” considerations of allowing a POTUS to be criminally prosecuted after leaving office to rest with the words of two Appellate Judges each with only 18 months on the Court, and…
How do you think SCOTUS feels about three judges on the DC Appeals court putting them on a clock?
— Shipwreckedcrew (@shipwreckedcrew) February 6, 2024
My suspicion: “Who the fook do they think they are?” https://t.co/etYgs4Wxij
I no suspect some Justices might again be unhappy with the procedural games being played by the App Ct in terms of altering the rules re issuance of the mandate. Rather than follow the rules as written and typically applied, they give Trump only 6 days to seek a stay from the…
— Shipwreckedcrew (@shipwreckedcrew) February 6, 2024
While there is at least one typo in the post, we think his point comes across. The rest of the text reads:
Rather than follow the rules as written and typically applied, they give Trump only 6 days to seek a stay from the SCOTUS, and they state that - unlike every other case - filing a motion for rehearing won’t delay issuance of the Mandate.
I think this might land flat, just like Smith’s effort to bypass the Appeals Court to save time.
Why don’t the ordinary rules ever apply to Trump like everyone else?
Also: See what we mean about norms not always being followed when it involves Trump?
Ultimately, there shouldn’t be a trial until after the election and a reasonable time to deal with any challenges to that election, if there are any. This entire legal process amounts to election interference. For instance, could the district court declare that the trial will take place from July 15 to July 18? That would also be the dates of the Republican Convention in Milwaukee. So, in that scenario, the courts would be interfering with Trump’s ability to receive the nomination for President and take advantage of that ceremonial occasion to make his metaphorical case to the voters. Or perhaps they would set it on the day a debate is scheduled. There are a million ways the courts could effectively sway the election just by forcing Trump to go through a trial, even if by some miracle he won the case.
And the additional grubby thing is that these are federal judges potentially interfering with the election. How do those federal judges get their jobs in the first place? Well, they are appointed by the President (with the consent of the Senate). And if a federal judge wants a promotion—that is, a district judge wants to be a circuit judge, or a circuit judge wants to be a Supreme Court justice—who will be the one to make that nomination? The President. Judge Tanya Chutkan, for instance, was appointed by Obama. If she wants to be appointed to serve on a higher court in the next four-ish years, her only hope is to get such an appointment from a President Joe Biden—we know there is no way in Hell a President Trump will give her any kind of promotion. So, she has a vested interest in helping Biden get four more years, and generally in pleasing Biden and his party. We’re not saying that this concern will necessarily motivate her, but it creates a very real institutional concern for bias.
Of course, there isn’t a single judge in the entire federal judiciary you couldn’t say that about. It’s not a concern specifically for Chutkan or even liberal judges. It's a concern for all judges (as opposed to Supreme Court justices). Even if the judge is a well-known conservative, then the judge has the opposite problem: The concern that he is going to go out of his or her way to help Trump, because he or she wants a promotion when Trump is elected president. It’s an inescapable bias in the system. And the easiest way to avoid this ethical minefield is to kick the case down the road until the election season is effectively over. The courts can even limit that rule specifically to the President, because the President has such a large role in the appointment of judges and justices.
No judge or Supreme Court justice has officially ruled this way so far. But there is a way to do so without saying it: Just let Trump’s lawyers delay the trial until election season is over. For instance, the Supreme Court could take the case, set it for argument, and then decide later that they shouldn’t have granted the appeal after all, well after election season is over. If the courts are not comfortable with setting a formal legal precedent on the topic, that is a way to have their cake and eat it, too. But under no circumstances should this criminal case go to trial when Trump needs to be campaigning. It is wrong for the judiciary to allow for such interference in the election of the President.
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