Unconscionable is a strong word, but one that’s warranted here. Consider: It took just 18 days after oral argument for a different panel of the U.S. Court of Appeals for the D.C. Circuit to produce a well-reasoned, 68-page opinion largely rejecting Trump’s challenge to the gag order issued against him by the trial judge. The issues of law posed by the immunity case are no more complex.
What’s going on? The immunity panel included two Biden appointees — Florence Pan and Michelle Childs — and a George H.W. Bush nominee, Karen Henderson. They appeared disposed to rule against Trump, but perhaps a concurring or even dissenting opinion is slowing things down. Your honors, the clock is ticking more loudly every day.
Trump’s ability to effectively freeze the criminal case against him stems from an obscure exception to the general rule that criminal defendants can’t file appeals until after conviction. Assertions of immunity from prosecution are generally an exception, on the theory that the injury includes being forced to endure the criminal process itself. Trump’s immunity claim is almost certain to fail, but his lawyers seized on this loophole in a bid to forestall his trial.
So far, it’s working like a charm.
Without strict court supervision and swift action to prevent Trump from running out the clock, his trial could easily collide with the party conventions and the height of the general election campaign. It is not at all far-fetched to imagine it being postponed until after the November election — Trump’s ultimate goal, so he can win, take office and then order the case dropped.
Failing to try Trump before the election would be a terrible disservice to voters. They are entitled to know before casting their ballots whether they are choosing a felon, especially one guilty of election interference. Polling suggests that a Trump conviction would matter even to many Republican voters.
Trump’s bid to manipulate the system is evident from the pace of his filings. Trump’s lawyers first raised the notion of his supposed immunity from prosecution in late August. It wasn’t until Oct. 5 that they finally filed the promised motion to dismiss; U.S. District Judge Tanya S. Chutkan rejected the claim on Dec. 1.
When Trump appealed, special counsel Jack Smith, seeking to forestall the current predicament, asked the Supreme Court to leapfrog the appeals court and decide the matter itself. If the justices had figured there was no need for them to step in because the appeals court would act swiftly — well, that now looks like a bad bet.
The trial, which had been scheduled to start March 4, is now in limbo. Smith has estimated the trial will take two months. Meanwhile, pretrial proceedings are stalled while appeals drag on, a process that could take weeks, if not months. If, as expected, the panel rules against Trump, he is entitled to ask the full appeals court for rehearing, and then to seek Supreme Court review.
It’s possible the justices would decline to hear the case or summarily affirm the appeals court, without going through the time-consuming process of briefing, oral argument and opinion writing. But Smith himself has argued that the case is “at the apex of public importance,” so such cursory treatment might be unlikely. And recall: It took two months — lightning speed in Supreme Court terms — for the justices to decide that President Richard M. Nixon had to comply with a subpoena for the Watergate tapes.
Once the appeals are finished, Trump’s lawyers will receive extra time to resume pretrial preparations. That means it will be difficult, if not impossible, to conclude any trial by the time of the Republican National Convention, which gets underway July 15.
Of note, the Federal Rules of Criminal Procedure require that the defendant “must be present” at “every trial stage.” What happens if the trial can’t start until the general election campaign is in full swing? No doubt Trump — having engineered the delay that ensured this overlap — will then insist that the electoral calendar calls for postponing the trial. This calls to mind the murderer who kills his parents and then pleads for mercy because he is an orphan. But it is also unsettling to imagine Trump unable to campaign because he is mired in trial.
What can be done? The appeals court, delayed decision notwithstanding, has demonstrated its awareness of the need for quick action; it set an expedited schedule for briefing and oral argument. When the panel finally rules, it must take care to set limits that prevent Trump from exploiting the usual deadlines for filing appeals. As a useful analysis from Just Security demonstrates, Trump would ordinarily have 30 days to ask for review by the full appeals court, and 90 days after that to go to the high court.
But both the appeals court and the Supreme Court have mechanisms to frustrate this kind of gamesmanship. They can set tighter deadlines and allow pretrial preparation to go forward while they weigh any appeal. Justice has been delayed enough already.
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