@Moriarty is a US lawyer practising criminal law, so I would accept that his understanding of appellate rules carries some weight in this discussion.
That was back when the Court had some credibility. If Roberts cares at all about restoring it, he could make it happen.
Yes, interlocutory appeals exist, but they are not typically available for a criminal defendant.
Usually, a defense motion goes to the admissibility of evidence. If that motion is denied, then the defendant has to go to trial and lose before he or she can raise the issue in the appellate court regarding whether the evidence should have come in. It’s not something that would happen before the trial.
Here, we are dealing with a “dispositive” motion; if the defense prevails, it disposes of the case. The closest analogy I can think of for a typical defendant would be a claim of immunity under some version of the “castle doctrine” (that is, the right to use force when in their own home; some states, like Florida, have expanded this to other places).
If a defendant prevailed on such a motion, the case would be dismissed. But if the judge rules against them, then the defendant has to defend the case through trial before being able to raise the denial of the motion with the appellate court.
In fact, this feature - that defendants don’t usually get to stop the prosecution to file an interim appeal - was the subject of an amicus brief to the court. It’s based on sound legal principles.
(My bold)
If they were going to rule that Trump was immune, why would they bother with the delaying tactics? Were I Trump, and honestly believed that I was immune, and expected the SC to rule in my favor, I’d want that ruling on the books as quickly as possible. Otherwise this hangs over his head for months leading up to the election, and who knows what impact that might have?
But a Trump who was declared immune? He can spend the next 9 months crowing about how he was completely right, and those Evil Democrats completely wrong.
I think the SC might be thinking, this issue is important enough that it should get the stamp of approval, one way or the other, by the SC. Regardless of how they rule, this is going to change how everyone sees the role of the President for decades to come.
So you’re saying it won’t happen
Also, regardless of how they rule, it is likely to change how everyone sees the role of the SC for decades to come.
If we removed ‘delaying the trial’ as a motivation for an interlocutory appeal. Wouldn’t it, in general, make more sense to wait until after the trial is over? When this comes up in these Trump cases, I can’t help but think it would make more sense to let the trial finish, then start the appeal in an attempt to get it overturned. However, if I understand these things correctly, by doing these interlocutory appeals, he’s essentially asking the higher court to fix (or at least address) these issues as they happen. Would that not make it even more difficult to appeal?
I think your use of “typically” is the answer.
Whether a trial court’s order is subject to an interlocutory appeal, the answer is typically no - you wait until trial is over for appeals. But not here. Not that you’re wrong, just there is no explicit right or wrong answer. Whether a defendant can appeal prior to trial is based on a legal test and those legal tests can have differing/grey results.
Here, Trump filed an interlocutory appeal, and no one that mattered disagreed. His appeal was granted; DOJ did not object to the interlocutory appeal/did not raise jurisdictional arguments (they actually agreed: “This [appellate] Court has jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine for the defendant’s claims that he is immune from prosecution…”) The only objection I can see is from the amicus brief filed in the appellate court you cited - maybe other amicus briefs. Those jurisdictional issues (ie, should we even be discussing this…can we?) were discussed at the appellate level - but the opinion was on the merits of the immunity claim. DOJ did not raise this as an issue at any point and their opinion is really the one that matters (to me).
The issue is unquestionably novel. If he has immunity, there would be no need for any discovery/pre-trial litigation. So only dispositive if this (novel) immunity even exists. Nobody knows. It was appealed pre-trial and DOJ agreed it was proper; Judges did not object to the pre-trial appeal. Trial Judge even granted a stay while it was on appeal. None of that is telling me it was definitely wrong.
With all that said, I am not a criminal lawyer. I’m mostly relying on the fact DOJ did not have a problem with it/agreed to it as far as I can tell.
Except if that happened, Trump may have already lost the election – at which point it doesn’t matter if SCOTUS rules in his favour. He’s already lost. The best that could happen is that he stays out of prison at least until they rule. If the trial is delayed until after SCOTUS rules, then he may have been elected President and he can make it all go away.
My read: The Trump-appointed judges are giving Trump a ‘win’ by delaying the trial, but they will ultimately rule – after it’s too late – that presidents don’t have absolute immunity. MAGAs will be happy because SCOTUS delayed the trial, and everyone else in the country will be happy that the issue has been settled.
I won’t be happy. The matter is already settled. Look no further than Ford’s pardon of Nixon.
‘Happy’ for a given definition of ‘happy’. The issue was, in my mind, settled 50 years ago. While I would have been happy (ecstatic) if SCOTUS let the lower ruling stand, I’ll be ‘happy’ if they explicitly rule that presidents do not have absolute immunity.
Were they to rule that, you no longer have a country.
This is my feeling as well. The SC knows this immunity argument is BS, there’s no way they’ll ever just let the president be above the law, but at the same time, they want to tilt the scales in Trump’s favor, without being completely blatant about it. So they play the delaying game by pretending to spend a lot of time thinking ponderously about such an important topic. And oh, too bad, our taking things seriously took too long? Well, at least we’ll know for next time, alas.
If the SC had simply let the lower court ruling stand doesn’t that not stop Trump from claiming immunity in his other cases, resulting in appeals to other appellate courts and further delays?
You know, I’d buy that argument except for one thing: There was no need to delay taking it up for nearly 2 months.
I have to ask. If he dies before the SC rules, does the question become moot?
Well, only one way to find out for sure.
Generally, yes. Federal courts avoid issuing decisions without an actual controversy. There are exceptions, probably not relevant here.
Personally, I think it’s absolutely possible that this bullshit court could come out with a 6-3 or 5-4 ruling like “In general, presidents of course do not have absolutely immunity for all actions, but this president’s actions were official for [insert bullshit legal mumbo jumbo here] and thus he can’t be charged for Jan 6.”
a/k/a “Capable of repetition, yet evading review.” I very much doubt this case is ever repeated.