READ: DC Appellate Court Rejects Trump's Claims of Immunity from Prosecution
As expected, a three-judge panel as affirmed Judge Tanya Chutkan's historic decision that concluded a president is subject to criminal prosecution. The full opinion posted here.
I am in Washington for meetings and to attend oral arguments at the Supreme Court on Thursday morning related to the Colorado Supreme Court ruling that removed Trump from the ballot, so unfortunately I don’t have time right now to provide a deep analysis of today’s landmark opinion on Trump’s immunity claims.
But I wanted to at least share the decision with you.
You can find the full opinion here:
The order was issued “per curiam,” which means the three judges agreed and no one technically authored the mandate. The decision represents an expected win for Chutkan and Special Counsel Jack Smith; last week, Chutkan officially vacated the March 4 trial date as the appellate court continued deliberations.
So, the big question now is—what happens next? The appellate court took the additional step of requiring Trump’s lawyers to file a “stay” application—a request to put the appellate mandate on hold indefinitely—at SCOTUS before February 13; until then, the order is on hold by the appellate court until Trump files the application. (I KNOW THIS IS CONFUSING!)
But the court warned that if Trump instead exercised his option of seeking “en banc” review by the appellate court—meaning all judges would hear his appeal—the temporary hold on the proceedings will be lifted and Chutkan can restart the pretrial schedule.
Given the Democratic composition of the full D.C. Circuit court, it makes little sense for Trump to pursue that relief. And since the panel gave Trump an ultimatum—go to SCOTUS or else—his lawyers basically have no other option.
If Trump files the stay application on Monday—keep in mind his lawyers will be before SCOTUS on February 9 pleading for a reversal of the Colorado mandate—the court has quite a few alternatives on how to proceed.
The court could grant the emergency stay and give Trump a date by which he must file a petition for a writ of certiorari, which asks the court to review the appellate opinion. Usually the petitioner—in this case, Trump—has up to 90 days to file the petition after submitting the initial application but SCOTUS could demand a tighter deadline while keeping the Washington trial proceedings on ice in the meantime. (Useful to recall SCOTUS denied Smith’s attempt to skip appellate court altogether and issue a hasty ruling on immunity.)
Both sides then file briefs based on the schedule set by the court. Four justices must agree to grant cert, which would green-light Trump’s filing of the official “writ”—detailing his objections to the appellate court decision—and oral arguments would be scheduled. (There are some other arcane options but no need to make this more complicated than it already is at this stage!)
This is where things get a little hairy for Jack Smith. If the court does not publish an opinion before June, Trump’s trial in Washington undoubtedly will be moved past Election Day.
Why? Judge Chutkan, who put the Washington trial proceedings on hold in December pending the appeal, stated that any time lost between her hold and final resolution of the immunity matter would not count against Trump. So even if the court publishes an opinion in early May, which appears to be the earliest conceivable date, five months would be added to the restart of the Washington trial schedule. (Pretrial activity before a criminal trial, especially one of an unprecedented nature, is significant; motions related to witnesses, evidence, and exhibits must be filed and resolved, and the jury selection process for this trial could take months.)
That would move the start of the trial, if SCOTUS renders a decision by early May, into October. And since Attorney General Merrick Garland recently admitted the DOJ will not interfere in the ongoing court proceedings in Washington or in Florida for the classified documents case, the American public should prepare for the possibility the GOP candidate for president and 45th president of the United States will be on trial at the same time voters are casting their early ballots.
Will that happen? In 2024, anything is possible. We should know more after SCOTUS replies to Trump’s application next week.