No Immunity Idol for Donald

But what happens next, and can he succeed in delaying the case past the election?

A much-anticipated ruling from the D.C. Circuit Court of Appeals finally confirmed what common sense already dictated: that former president Trump isn’t immune from criminal prosecution under some special rule that only applies to presidents.

The unanimous opinion, which was issued per curiam, meaning by the entire court, blasted apart Trump’s arguments one by one. 

Trump had claimed absolute immunity for “official acts” while he was president, that everything in the indictment was actually an official act. And he claimed that “separation of powers” means courts have no jurisdiction over presidential acts. 

But the court rejected this, saying the limitation only applies to lawful, discretionary acts, not criminal ones. Besides, Trump was not acting in his official capacity as president, but rather as a candidate, when he sought to overturn the election. 

Trump argued that no president would be able to function if always worried about prosecution after serving in office. But the court found that the need to hold the president accountable, in this case for trying to halt the peaceful transfer of power, outweighed any hypothetical concerns. 

Plus, the threat of prosecution after office would actually act as an important deterrent to possible abuses while president. And in response to his claim that prosecutions would be forever politicized and weaponized, the court noted that prosecutors would still have to abide by their ethical duties and obtain grand jury indictments.

The court found that Trump’s argument that he wasn’t removed after impeachment and therefore can’t be prosecuted, badly misreads the actual language of the impeachment clause. And there simply was no Double Jeopardy, as he had asserted, because an impeachment doesn’t result in criminal punishment. In any event, the indictment alleges different offenses (three conspiracies) than the impeachment did (incitement of insurrection).

Joyce Vance provided an excellent summary of the legal reasoning underlying the court’s decision, and you can read it here.

I want to take the rest of my time today to address common questions I’ve seen readers ask, now that the opinion is out and it’s clear that Trump does not have absolute presidential immunity as he claimed.

Can Trump appeal this to the entire D.C. Circuit to waste more time?

Trump, like any litigant in his position, has a right to appeal his case for what’s called en banc review. It’s a step that can happen before an appeal to the Supreme Court. The panel that just ruled against him left this possibility open, but they didn’t make it very attractive.

Trump normally would have a full 45 days to seek a rehearing en banc. But in this case, what Trump really cares about is whether the case before Judge Chutkan is “stayed”—i.e., frozen in place while his immunity appeal gets sorted out. 

Here, the panel was pretty clever. It told the clerk to withhold the “mandate”—meaning sending the case back to Judge Chutkan—through February 12. The case then goes back to Chutkan the next day, February 13, unless Trump files for a stay with the Supreme Court before then.

But the panel’s order also expressly states that the filing of a petition for a rehearing en banc will not cause the clerk to hold the mandate back. In other words, if Trump files for en banc review, instead of with the Supreme Court, the case will restart. A new trial date gets set, and Special Counsel Jack Smith can proceed. The case would only stop again if the entire D.C. Circuit agrees to hear the case, which doesn’t seem like a good bet given how weak his arguments are.

If I were Trump’s attorney, I would not apply for en banc review. It wouldn’t immediately achieve what Trump most needs: delay.

Will the Supreme Court hear the case?

There’s a good argument for why the Supreme Court should hear this case. It’s one of first impression, given that no president has ever been indicted and prosecuted before. And it raises important questions, as we saw above, of separation of powers, public policy and constitutional interpretation. My bet is that the Court will be inclined to hear it.

There’s also an argument, though in my view a less persuasive one, that the Court would and should deny review. The arguments that Trump has raised are clear losers, and the panel’s unanimous, per curiam decision confirms that. Trump’s arguments have always been a stretch, and he’s likely to lose 8-1, or even 8-0 should Justice Thomas recuse because of his wife Ginni’s involvement in the coup attempt. (A guy can dream, right?)

But here’s a fun fact: While it only takes four justices to agree to hear a case, it takes five justices to issue a stay. And a stay is what Trump really, really needs to keep running out the clock. So there is a world, though a narrow one, in which the Court grants review but doesn’t stay the case. I think it’s pretty unlikely, but wouldn’t that be fun?

How long will it take for the Supreme Court to rule?

This is the big unknown. Whether the Court ultimately decides to take the case matters less than how quickly, or slowly, it does so. As soon as Trump applies for a stay, a whole host of things can happen. Let’s run these from best case to worst.

Best case: The Court grants a stay with a shorter period, say 10 days, for Trump to file his petition for review. It could then simply deny review, sending the case back to Judge Chutkan by the end of February or so. Trial could begin in June and conclude by late August or early September. Easy peasy!

Good case: The Court treats Trump’s application for a stay, due by February 12, as a petition for review. These two things are normally distinct, but the Court has made an exception before, notably in Bush v. Gore when time was very tight. That would shave weeks off of the process, because normally a party seeks and gets a stay, and then is given a timeline for briefing on the merits. The Court could hear oral arguments in early March and issue a decision in early April. The trial could begin in July and conclude by early October.

Bad case: The Court grants a stay, again with a shorter period of 10 or so days, for Trump to file his petition for review. The Court then grants review, as I think it’s likely to do. It hears oral argument in mid March, rules by mid April, and the trial begins in mid July, concluding by late October, cutting it VERY close to the election.

Worst case: The Supreme Court grants the stay, but then sets no limit on when Trump has to file his petition for review. Trump uses up the full 90 days under the normal rules. That would mean Trump’s petition wouldn’t be due until mid May, which means SCOTUS might not even get to it this term.

Here is a handy flowchart timeline that the folks at Just Security put together, illustrating the above four scenarios. You’ll see that a lot of the outcomes have the trial still starting this summer and concluding before the election. You’ll also see, however, how a delay of even a few more weeks could push conclusion of the trial past it.

Can Trump keep filing other appeals and mess up the calendar?

Trump is very good at throwing not just ketchup but legal spaghetti at the wall, seeing what might cause maximum delay. In this case, Trump’s claim of immunity was entitled to what’s called an “interlocutory” appeal. That’s a fancy way of saying an appeal before final judgment.

The universe of arguments entitled to interlocutory appeal—and which could and in this case did result in a stay of the trial calendar—are limited. And Trump is now out of them. Judge Chutkan made him file all his “dispositive” motions, meaning defenses like immunity that could settle the case long before trial, by late last year. Trump can’t pull more legal pasta out to throw at the wall.

The next big day is February 12. Expect to see Trump file his application for a stay before SCOTUS on that date. Again, it’s technically possible Trump goes for en banc review, in the hope of using up more time on the clock. But the panel made that very unattractive to him, as Chutkan would likely use any restarting of the clock to settle discovery and other matters that had been on hold. And if the D.C. Circuit denies en banc review, it would be much easier for the Supreme Court to not issue a stay and to not grant review.

Some final thoughts

As I conclude my piece for today, I can’t help but note that Trump is already heading to the Supreme Court tomorrow for argument in the Colorado primary ballot disqualification case. As I’ve written about earlier in The Big Picture, this Supreme Court certainly has an outsized say in 2024 on the future of our democracy. 

We shouldn’t look for that conservative supermajority to save us by disqualifying Trump. But we can at least hope and expect, as I do, that they won’t stand in the way of justice by delaying Trump’s criminal trial until after the election. Trump has a solidly losing record before this Court, despite its many extremist conservatives. I expect that trend mostly to continue, especially when it concerns his unprecedented claims of presidential power and immunity.

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