If DC Circuit punts, can Trump appeal their punting of the issue to the SC, or is that the end of it until DC Circuit says it’s ripe for appeal?
Maybe I’m missing something, but I don’t see that it gets to the Supreme Court until it’s first been appealed. If the DC Circuit Court of Appeals “punts”, it’s because they’ve determined that it’s not yet ready to be appealed.
This jurisdiction issue is really quite fundamental. Absent rare exceptions, most issues that a defendant can raise in a criminal case must be addressed at the trial level, at which time they are preserved for appeal if he then loses at trial.
Until that time, the issue just isn’t ripe for review.
As an example:
Let’s say you (the generic you) are charged with burglary, and you’ve filed a motion arguing that the search of your car, where the burglary tools and spoils from the home were found, was unconstitutional. The trial judge denies your motion to suppress.
You are then faced with going to trial, where the evidence is going to be admissible and used against you, and then be convicted, before you can appeal the trial judge’s ruling to the appellate court. And then you’d have to lose there before you could petition for cert with the Supreme Court (in my example, at the state level).
Trump’s claim of immunity is no different. It certainly doesn’t change the trial. Either it comes in, and he faces conviction, or the trial judge was wrong, and the appellate court will vacate the conviction and order the trial judge to reconsider.
So if you’re right on that technical issue, it sounds like there are two paths to the trial getting back on schedule. DC Circuit agrees with the amicus brief that it lacks jurisdiction; or DC Circuit hears and denies the appeal and Supreme Court then denies cert.
In the former case, I suppose it means that if he’s convicted, there will then be an appeal on immunity grounds that will go to DC Circuit and then to SC, which could still keep him out of prison until he’s in the White House?
Yeah, I think this is what would happen.
Not necessarily. Most convicted criminals aren’t set free while they appeal their conviction.
Well that’s good to read, given that this will be in the hands of a judge who isn’t in Trump’s pocket.
Yep.
Not likely to flee, my ass.
Do you have an opinion on why this is such a “Perry Mason,” unique perspective? I have found Littman’s analysis to be excellent, especially as translated for a layman, so I’m tying to reconcile the notion that this was a clever, “from out of nowhere” argument with the explanation that appeals such as this are almost never heard before a verdict.
IOW, why wasn’t this the first thing prosecution filed?
I really don’t know. I’d think the argument against this is that this is not a typical criminal defendant; maybe even the prosecution got caught up in the notion of presidential immunity, and forgot to frame this as a mere citizen under indictment instead.
From my link above, here’s a more detailed breakdown of the argument
Smith’s tactic of moving for an expedited hearing by SC might have been a preferable first choice, since it quickly kills the appeal completely rather than delaying it until after the trial. Perhaps Smith thought that motion had a good chance, and it would have undermined that motion to simultaneously argue lack of jurisdiction?
I don’t know how these things work, is introducing this argument by amicus brief after the SC motion failed seen as more acceptable than the prosecution switching tack?
Thanks very much for explaining this issue.
Earlier, I mentioned how stupid I thought it was for Trump to suggest that Russia was intereferring in the election, but for Biden’s advantage and suggested that maybe he shouldn’t bring that up since even a cursory look into some of his claims would likely point right back at him. Then I followed it up with this:
And here’s where we are today. Honestly, what is going on in his head that he thought this tweet was a good idea?
Even his commentary is stupid. I’ll grant that a former president of the United States might not be aware that Branson and Prince Andrew are outside of the DOJs reach, not being residents of, or living in, the United States. But surely he must know that former President Clinton is immune from everything, being a former president.
But jokes aside, either Clinton is immune to anything he did in office or Trump is guilty. If Trump wants to skate, he really should leave the Clintons alone.
the arguments have started in dc. cnn and msnbc are carrying the audio live. right now mr sauer is arguing for mr trump on immunity. the three judges are childs, pan, and henderson.
I don’t know that it changes anything, but it wasn’t until well after I posted that, that I realized it was Jr.
now on to mr pearce for team u. s…
mr sauer did state that should they lose this appeal, they will request the entire bench, and then supreme court appeal.
Well, of course. The point is to delay the trial ever happening. Winning on the immunity motion would just be a happy fringe benefit.
team trump took an interesting tack today. they argued that a president can not be charged with something unless they have been impeached and convicted for the crime.
the judges are pushing on that.
i’m not sure if we are looking at a barrel of monkeys or a can of worms.
pushing which way? For it or against it?
it sounds like against. they seemed hhhmmm, a bit, ah, incredulous at this argument.
team trump went with completely different argument that what was in the brief.
I’d say largely against. But it’s always hard to tell with Judges questions. Lots of attempts to get Trump’s lawyer to answer the hypothetical of: “if he were impeached and convicted, on the same factual allegations, could he then be prosecuted?”.
Trump’s lawyer didn’t really want to concede that, but ultimately if there argument hinges on conviction by the Senate then you sort of have to concede the hypothetical. Otherwise you have to concede that official acts by a sitting President can never be prosecuted. Which is a pretty terrifying thing to concede.
And yes, the prosecution team seemed a bit taken aback that the oral arguments didn’t seem to track with the submitted brief.
ETA: There was also some discussion of the fact that one of the primary reasons he wasn’t convicted was because a number of Senators felt like he would and should be prosecuted after he was out of office. Not that there beliefs would necessarily overrule the Constitution, but it points out that there are lots of reasons why the Senate might not convict even if the facts support conviction and removal from office.