This surprising argument could derail Trump’s attempt to postpone the January 6 trial

(Dana Verkouteren / Associated Press)

This surprising argument could derail Trump’s attempt to postpone the January 6 trial

On Ed

Harry Litman

January 3, 2024

While all eyes were watching every word filed by Donald Trump and federal prosecutors ahead of next week’s crucial immunity arguments, a third party slipped in the side door with an assignment that will undermine the former president’s efforts to resolve the issue. to maximize delay could dramatically thwart.

The watchdog organization American Oversight, which is not a party to the case, successfully petitioned the U.S. Court of Appeals for the D.C. Circuit to accept its friend-of-the-court brief, on the grounds that that it offers a unique perspective.

That is indeed true. The letter makes the apparently convincing argument that the court should not hear this appeal at all because it lacks jurisdiction, that is, the power to hear it in the first place. If the court agrees, it would mean dismissing the appeal and sending the case back to U.S. District Judge Tanya Chutkan, abruptly ending Trump’s best chance to delay the Jan. 6 federal trial.

Trump’s argument is that he has the right to avoid a trial because the Constitution prohibits charging him for conduct he committed as president, at least if that falls within the outer limits of his official duties. Most observers, including myself, think Trump will lose the claim, but it’s likely the U.S. Supreme Court will have to make that crucial decision. The question is when before the trial, when the case will be put on hold, or after.

Chutkan has decided that she cannot proceed with the trial until that is settled, reasoning that immunity is a right not to appear in court in the first place. That suggests that even if Trump is in danger of losing his claim, he could delay the trial for at least a few more months, delaying the start of likely the most important of the four criminal trials he faces. Originally scheduled for March, that postpones the trial deeper into Trump’s campaign to return to the White House.

Read the American Oversight Brief, written by attorneys from the Washington-based firm Arnold & Porter. The order is based on a unanimous 1989 Supreme Court opinion, Midland Asphalt Corp. vs. United States, written by the late Justice Antonin Scalia. The defendant in the criminal case, Midland Asphalt, unsuccessfully sought dismissal of the charges based on the prosecutor’s alleged violation of grand jury rules.

The Supreme Court ruled that neither the Supreme Court nor the Circuit Court had the authority to hear the case on summary judgment or before trial. As is the case with the vast majority of issues that may arise at trial, the court ruled, this issue cannot be considered until after a conviction.

The court emphasizes that in criminal cases, the compelling interest of a speedy trial requires that courts apply the doctrine of summary proceedings with the utmost strictness. Federal courts only have jurisdiction over such appeals, the judges ruled, if they are filed under a constitutional or statutory provision that expressly gives the suspect the right not to appear in court.

Since the Midland Asphalt opinion, the court has identified only three categories of motions that may be considered before trial in criminal cases: motions to reduce bail and motions relating to the






lause in the fifth amendment of the constitution, and the


beep or




lause, which protects lawmakers from being questioned, that is, tried at all.

Trump’s immunity argument therefore does not seem to fit within the exceptions of Midland Asphalts.

It doesn’t rest on

any explicit constitutional guarantee. And the DC Circuit Court previously ruled that a right based on constitutional principles such as the separation of powers is not sufficient.

The Justice Department and Trump had assumed that the DC Circuit Court had jurisdiction based on Nixon vs. Fitzgerald, who established broad but not endless immunity from lawsuits over a president’s conduct while in office. But that civil case was not subjected to the utmost severity


the Supreme Court


applied to criminal cases. It also foreshadowed Midland Asphalt’s opinion, which the Department of Justice somewhat bafflingly failed to mention.

There may be a reason why the Midland Asphalt Doctrine doesn’t apply here, but I can’t think of one.

Jurisdiction is an issue that courts take very seriously, and I think the DC Circuit Court should and probably will

to consider

the argument that it has no jurisdiction

very carefully.

It has already ordered the parties to discuss American Oversights’ position during oral arguments on Tuesday, when it is likely to be a subject of intense questioning.

If the argument succeeds, it will be an appellate version of the kind of Perry Mason moment that rarely happens in a real courtroom. With a wave of a legal wall, Trump


am back in the




We are preparing for a only slightly postponed trial.

Harry Litman is the host of the

Talking Feds Podcast




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