finally! also they greenlighted a fast track for the trial.
unless the supreme court takes up the case by feb. 12th, the trial moves forward.
Here’s what the NY Times reported about the delay aspect:
The three judges circumscribed Mr. Trump’s ability to use further appeals of the immunity issue to waste more time and delay the case from going to trial — a strategy the former president has pursued since the start of the case.
The panel said, for instance, that the underlying case, which was put on hold by the trial judge in December, would remain suspended if Mr. Trump appealed its decision to the Supreme Court by Monday, Feb. 12. If the Supreme Court decided to take the case, it could issue its own order freezing the trial proceedings.
That’s not nothing, in that it forces Trump to appeal quickly, but we all knew he was going to appeal if he lost, so it’s not a huge thing, either.
Seems like the best case scenario from a speed perspective is if the SC denies cert quickly, then things really could move forward this Spring. But I suspect they will hear the case, which means many more months of waiting until a trial, if there is one.
I suspect not since there really isn’t anything for them to consider. That and they would prefer not to touch Trump with a 10 foot pole if at all possible. The only real question I see here is how quickly are they going to deny his appeal.
I wish I had your optimism. I think because the issue is so fundamental, they are going to want to take it - and be seen ruling on it - even if they eventually rule 9-0 against him. And all of that will take many, many months.
I read the articles as saying that Trump has until February 12th to file an appeal. The Supreme Court doesn’t have to decide to take the case by that date.
Is there a deadline for when they have to decide what they’re going to do with it?
I don’t believe so. In some cases, they consider the question for a very long time. However, they can also move within days if they wish to.
4c6f2b04-4bac-4d61-91e2-49c96f54696b.pdf (washingtonpost.com)
here is the 57 page pdf. thank you for the correction, procrustus.
I read it as - ‘if he doesn’t appeal to SCOTUS by the 12th - this moves forward’…
I found it interesting inthe CNN bits i read - his ‘campaign’ said he would appeal - not him, not his lawyers, but his ‘campaign’ … what a joke.
Yeah, that’s kind of how I see it, too. It’s not like there’s another circuit out there that has issued a judgement that conflicts with this one. I imagine they’d be inclined to let sleeping dogs lie.
what are the odds that team trump somehow can’t get themselves together enough to get the request in by the 12th?
If there is one thing Trump lawyers are good at it is delaying the whole process.
Here is an emptywheel article about the ruling - DC CIRCUIT UPHOLDS JUDGE CHUTKAN’S IMMUNITY DECISION. It’s about 6 pages long (the ruling is 57 pages for comparison). Since the details are the point, I won’t summarize, but here is a flavor - short emptywheel comment followed by the actual court opinion:
The opinion straight up says Trump’s Take Care Clause argument is bunk.
The President, of course, also has a duty under the Take Care Clause to faithfully enforce the laws. This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new President at the constitutionally appointed time. To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued implemented his Take Care duty, he is in error. See infra n.14. Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.
I’d note, the Opinion is “Per Curiam”. Generally, you get one Judge to write the opinion, and the other two Judges will just agree with it (or if they disagree, they’d write their own dissenting or concurring opinion). Per Curiam means all three Judges wrote this opinion - it’s all three, both R and D, speaking with one unified voice. That’s not nothing, certainly not in this case.
Finally, I believe the first “appeal” could be to the DC Circuit to hear it en banc (not just 3 Judges giving this Opinion, but all the DC Circuit Judges). Then an appeal to the Supreme Court. You don’t have to, but you can. No one can know if either will decide to weigh in with a new opinion, but both can decline to hear the case at all and leave this Opinion standing as the final say. Per Curiam may give them a small “out” to decline to hear (ie, it’s not just a Dem writing the opinion); certainly the DC Circuit; having said that, I doubt Alito or Thomas with SCOTUS give a shit.
I mean…it’s not zero.
That’s the normal process, but I think the stay expires if they don’t appeal to the US Supreme Court by 2/12. So, there’s no time for the extra step of seeking en banc review.
Let us posit that Team Trump does not want to rush to the SC and decides they want to try the delaying tactic of appealing to the Appeals Court en banc first. In that instance, the stay would be lifted and the trial would proceed at a new date set by Judge Chutkan, simultaneous to the full Appeals court considering the matter. Is that right?
They’d have to be mind-bogglingly incompetent, so maybe?
I mean, any lawyer with half a brain would have known from the get-go that this would be the ruling. No way is any regular court going to just agree that someone is above the law; that shit hits directly at their own authority. If you’re going to burn down the rule of law, you leave that for the Big Judges on the Supreme Court. And at the same time, it’s a certainty that Trump would want to appeal, as that is both what he always does, and the only way he can delay the proceedings further.
So they’d have the appeal already written, needing only a few dates and such to be filled in.
Thanks for responding to that. I think the filing would not stop anything, but the DC Cir agreeing to rehear it would. I’m not sure how to embed pictures, but here is a twitter link to the Judgment (not the Opinion):
I would say we are getting into the weeds, but we’re not. It’s just weeds everywhere, all of it. Most people, including me, think it works like this: file appeal - make arguments to appellate Court - Court issues decision = Over - back to trial or appeal to SCOTUS. I do know that’s right enough to get through life but just not technically correct enough. But my brain starts to break down when I think through the details and options.
Let me know if this is correct:
Today, the Clerk entered a Judgement (see above) that Denied Trump’s relief based on the 57pg Opinion (attached upthread) of the DC Judges. In every case, no Judgement will go into effect until the Clerk later enters a Mandate (this has not happened yet). If nobody does anything, then the Mandate will eventually issue, and the appeal process is formally over for this issue. The trial court gets back jurisdiction to resume as before, except that Trump cannot raise an immunity defense. That Mandate might be issued in say, 21 days, but in this case, it got sped up and will issue on Feb 12. Assuming nothing, this appeal is over over on Feb 12. Right?
However, if somebody does something before Feb 12/Mandate issues, I see tons of options (more than the two I mentioned) but am unable to think how likely they would be. I’m also not clear if you can resume the trial (stay denied/not requested) and concurrently be waiting on SC to grant your cert (hear your appeal).
Also, say Trump files a Stay with SCOTUS by Feb 12. Trump filing a Motion for Stay is asking SCOTUS to pause entering this DC immunity Judgment until SCOTUS decides if they want to hear Trump’s appeal. What if SCOTUS denies the stay, can Trump still ask for them to hear the appeal it just wouldn’t pause the Judgment/trial would resume?
What does SCOTUS do with the Stay and who exactly is able to do it? I think the Stay is assigned to a specific Justice - here I think it would be Roberts who gets the DC referrals. Roberts could decline it - but how long does he have to decide? Or Roberts could not go it alone and put the Motion for Stay to all the Justices and I think 5 need to agree on granting the Stay - any timing issues here.
Again, all weeds.
They might file the appeal with the Washington State Supreme Court, you can’t rule anything out.
Article up on Lawfare - Not So Immune: The D.C. Circuit’s Forceful Rejection of Trump’s Claim of Absolute Presidential Immunity. Pretty comprehensive 15pg read - agree with the ruling.
I’ll tease out some parts I haven’t seen mentioned in this thread re what happens next and how fast it might happen:
[W]hile the appeals court’s decision arrived less swiftly than commentators wished, its thoroughness and unanimity should discourage Supreme Court review—which may well end up fast-tracking the Jan. 6 case for trial.
Unless the Supreme Court decides to eat up fully three more months, there is no obvious reason why a trial shouldn’t be possible before Election Day. What the Court will do, of course, is anyone’s guess.
Moreover, in producing a unanimous, ideologically diverse opinion that seems positioned to speak for the D.C. Circuit as a whole, the panel has made this route as easy as possible for the Supreme Court, if it chooses to pursue it. What’s more, as the panel states quite explicitly, it narrowly tailors its holding “to the case before [them], in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his presidential term.” In this sense, the panel’s holding may be distinguishable from some future case involving a former president accused of conduct dissimilar to what Trump is accused of and more plausibly suggesting immunity. This may make some justices more willing to let the current opinion stand.> There’s another reason the justices may choose not to review this opinion: it’s clearly correct.
[L]ook for two relatively quick signals regarding whether this case is now on the fast track or on the slow train. The first is whether the justices grant a further stay and, thus, when precisely the mandate ends up back in Judge Chutkan’s hands. The second is whether they grant the cert petition itself. The difference won’t affect the substantive outcome; no court is going to find Trump immune from these charges. It will affect, however, how quickly the case can go to trial—and whether there’s any hope of resolution before election day.