There remain questions about when the trial judge will have jurisdiction over the case again, but immunity has faded to the background. Now, it’s about obstruction.
The D.C. Circuit three-judge panel’s unanimous and thoroughgoing rejection of former president Trump’s claim of immunity from prosecution is a compelling piece of work. I find some parts more convincing than others, but the decision appears as sound as it was predictable. It should embarrass commentators who were agitating over the panel’s failure to issue a ruling rapidly enough for their liking. Barring true exigencies, it is better for a court to be right than to be speedy.
Rich and I will talk about the immunity ruling in the podcast this week, and I’ll write more about it if I get a chance. For now, I want to address the critical matter of timing.
Remember, more than the substance of his claim, the immunity issue has always been important to Trump for its potential to delay the election-interference case — because immunity, unlike most issues in federal criminal cases, is appealable pretrial. Notwithstanding Trump’s characteristically over-the-top reaction to today’s decision (a “Nation-Destroying ruling” that “cannot be allowed to stand”), I find it hard to believe the former president, or at least his lawyers, really expected to win on the merits.
On that score, nearly as important as the three-judge panel’s 57-page opinion is the one-page order that it issued in conjunction. This order is all about restoring district judge Tanya Chutkan’s authority to resume taking action in the case.
Because of the appeal, jurisdiction over the matter was transferred to the D.C. Circuit. Trump’s filing of the appeal divested Judge Chutkan of authority to act on the case. Despite prodding by the Biden Justice Department’s special counsel, Jack Smith, the judge sided with the Trump defense team’s argument that no action may be taken in the district court until the appeal has run its course — no discovery oversight, no motions, no hearings, no jury questionnaire preparation, etc.
The longer Chutkan is without jurisdiction, the further into the 2024 campaign calendar the start of trial would be pushed. In light of estimates that the election-interference case would take two to three months to try, Trump calculates that, at some point, the court would decide it is too unseemly to start trial. That is, even if the Biden administration’s appointed prosecutor is anxious to proceed against Biden’s election opponent, in a criminal trial that would require Trump’s presence in court every day and thus keep him off the campaign trail, Trump hopes the judge would recoil at how patently the prosecution was intruding on the electoral process — at the appearance that the court was being drawn into a partisan political strategy.
Trump’s delay is thus strategic. For political and legal reasons, he wants to push the trial beyond Election Day. On the political front, coverage of the trial in the midst of the campaign would be sensational, reminding voters about the Capitol riot and his efforts to upend the 2020 election result. On the legal front, if Trump won the election before the case had been tried, his new Justice Department could fire Smith and dismiss the indictment — i.e., the case would never be tried, and if the court fought him on dismissing the indictment he could simply pardon himself.
Having now lost the immunity case with the three-judge panel, Trump’s next move — assuming he follows through on his vow to appeal — would be to either seek rehearing en banc (i.e., by all eleven judges of the D.C. Circuit) or to ask the Supreme Court to hear the case. Often, parties who lose with a three-judge panel don’t even bother to seek rehearing en banc because it is so rarely granted; instead, they just petition the Supreme Court for a writ of certiorari (a grant of review). But this is not the usual case: Trump is just as interested in stringing things out as he is in having his immunity claim reviewed.
Under the Federal Rules of Appellate Procedure (Rules 35 and 40), a party has 14 days to apply for rehearing en banc once a panel decision is issued. I have thus been assuming that Trump would try to take the full 14 days and then seek rehearing. The D.C. Circuit would quickly deny it (probably within a week, or even less). Only then would Trump appeal to the Supreme Court. This would delay matters for another two to three weeks — with Judge Chutkan still unable to act on the case.
The circuit’s one-page order illustrates that the judges are on to this potential delaying tactic and are undertaking to thwart it.
In essence, the order gives Trump until Monday (February 12) to appeal to the Supreme Court. The circuit cannot prevent Trump from, instead, seeking en banc review first; but it has decided it can use its control over jurisdiction to discourage such a motion. Given that the en banc motion would be a waste of time, the order provides that if Trump tries to go that route, the circuit will promptly return jurisdiction to Judge Chutkan. She would immediately be authorized to resume action on the case. That would enable her to push the case to trial more quickly, the opposite of what Trump wants. On the other hand, if Trump appeals to the Supreme Court by Monday, the circuit will continue to hold the matter in abeyance until the Supreme Court either accepts or declines the case — meaning Chutkan would remain unable to take any action.
In other words, the circuit panel is nudging Trump to get on with the Supreme Court appeal.
This may not immediately be clear to non-lawyers because the short order is phrased in the argot of appellate litigation. The circuit refers to its “mandate.” In essence, that is the formal ruling of the panel. When the mandate issues, that returns the case to the lower court to apply the reasoning of the circuit’s decision. As the order puts it, the circuit is withholding the mandate until Monday, in the expectation that Trump will petition for a writ of certiorari from the Supreme Court. If he does so, the circuit will “withhold issuance of the mandate pending the Supreme Court’s final disposition of the application.” But the circuit cautions, “The filing of a petition for . . . rehearing en banc will not result in any withholding of the mandate.”
Trump fans will complain about these machinations (because only he is supposed to engage in machinations!), but there is nothing untoward in this. The purpose of the appellate rules is to facilitate a just result, not to give a litigant a way to game the system for reasons — such as delay — that are extraneous to the legal issue under consideration. Plus, Trump is not being prevented from seeking rehearing en banc; in fact, Rule 35 allows a majority of the circuit’s judges to order rehearing en banc even if the litigant doesn’t ask for it. I see no prospect that Trump could persuade the full circuit to grant rehearing. But if he were to try, and if the circuit surprisingly granted the motion, the mandate would be recalled — i.e., once again, Judge Chutkan would lose jurisdiction.
Now, let’s think about the probable result of all this: Trump applies for Supreme Court review by Monday. I do not believe the Court will agree to review the case; but I could be wrong. It takes only four of the nine justices to agree to take a case. In light of the facts that (a) the case is significant, (b) a former president of the United States would be making the request, and (c) the Court has never squarely decided the immunity question in the criminal context, the Court might decide to review it – and might, in any event, take its time deciding whether to intervene. Even if the Court ultimately declined to review the case, Judge Chutkan would be unable to act on it in the interim.
I believe the justices will decline because they’ll want to stay out of the 2024 political fray as much as possible. They are already on the hook to decide the issue of Trump’s access to the ballot in Colorado and elsewhere; the argument in that case, Trump v. Anderson, which involves the 14th Amendment’s §3, is scheduled for Thursday morning (see Dan’s analysis of the questions raised). There are still nine months to go in what’s shaping up to be a historically crazy election campaign, so there could be other issues the justices can’t avoid.
I’m betting they avoid the immunity issue because doing so would be easy. The justices can simply let the D.C. Circuit panel’s unanimous ruling stand. No, the Supreme Court has never ruled on the issue, but nothing says the Supreme Court has to weigh in on every novel question. The panel’s decision respectfully reasons from relevant lines of Supreme Court precedent, and it does not create a conflict with any other circuit. Plus, if there is an election-interference trial and Trump is convicted, he can always try to raise the immunity issue again on post-trial appeal; if that happens, the Court can deal with it a couple of years from now, outside the heat of electoral politics.
If I’m wrong and the high court does agree to hear Trump’s immunity appeal, jurisdiction over the case would not return to Judge Chutkan until the justices decided the issue. It’s always possible that the Court could both take the case and decide it at warp speed, but I doubt it. If the justices agree to consider the immunity question, I don’t see how the case gets to trial before Election Day.
One last point. Although the former president has inveighed against the panel ruling for public consumption today, the immunity issue has faded in importance since he first raised it. Far more consequential now is the obstruction issue raised in a case in which he is not a party, United States v. Fischer. There, the Supreme Court will consider federal prosecutors’ use of an obstruction statute (§1512(c)(2)) in the context of the Capitol-riot prosecutions. The two weightiest charges in Smith’s four-count indictment against Trump invoke the same statute. Fischer also raises overarching questions about how prosecutors creatively stretch statutes to cover behavior Congress was not targeting in enacting them.
That is to say, at this point the immunity issue is a sideshow. When the election interference case can be tried, and on what terms, hinges on what the Supreme Court does in Fischer. We are unlikely to know that until mid to late June. Regardless of how much longer the immunity appeal deters Judge Chutkan from attending to pretrial litigation, the obstruction issue is what matters now.