How the D.C. Circuit’s strong rebuke of Trump could put the Jan. 6 trial back on track

(John Minchillo/Associated Press)

How the D.C. Circuit’s strong rebuke of Trump could put the Jan. 6 trial back on track

Opinion piece, Elections 2024

Harry Litman

February 6, 2024

The D.C. Circuit Court of Appeals’ denial of Donald Trump’s immunity claim Tuesday was so comprehensive and emphatic that it could put his election interference lawsuit back on track to proceed before the November election.

The opinion is per curiam, meaning that all three judges have agreed and no one has been identified as an author. In this case, the form is purposeful: it communicates a lack of purpose and a sense of meaning. As the opinion reads, the question of whether a former president enjoys absolute immunity from federal criminal liability is a matter of first impression.

It may also be why the ruling took longer than many expected: every word had to be carefully worded to the satisfaction of each judge.

At the heart of the opinion is the firm rejection of Trump’s call on the grounds that his bizarre position would violate basic principles of the separation of powers. The court memorably notes that former President Trump’s position would collapse our system of separated powers by placing the president beyond the reach of all three powers.

The court also anchors the opinion in individual rights, namely the right to vote, on the basis that Trump’s arguments suggest “that a president has limitless authority to commit crimes that challenge the most fundamental check on executive power, namely recognition and implementation of election results. The justices wrote that they could not support Trump’s “apparent claim that the executive branch has carte blanche to violate the rights of individual citizens to vote and to have their votes counted.”

This double basis in constitutional structure and individual rights gives the opinion the most stable basis possible.

The opinion also conflicts with a friend-of-the-court brief arguing that the appellate court lacked jurisdiction to hear the appeal before trial based on the Supreme Court’s 1989 Midland Asphalt Corp. decision. versus the United States. It methodically reaches the sensitive conclusion, although somewhat at odds with the wording of that case, that the doctrine does not apply here. The justices reason that while the case appears to apply on its own terms, the more important point is that immunity is a right not to be tried in the first place.

Almost as important as the court’s response to the unprecedented questions at hand is the hearing of the mandate, the official statement sending the case back to the court and U.S. District Judge Tanya Chutkan. Normally, such a mandate is issued at least 21 days after the decision, giving the loser time to file an application

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reconsideration of the panel’s decision by the full court. Here, however, the panel emphatically gave Trump only six days.

That means that if Trump fails to suspend the ruling on Monday, the case will return to court and resume its normal course. So practically speaking, he doesn’t have time to do one

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rehearing by the D.C. Circuit, where his prospects would be slim anyway. The fact that there was no need for such reconsideration among the other justices may have accounted for some of the time it took the panel to rule.

Trump will therefore have to petition the Supreme Court for a postponement. He is almost certain he will do this and links it to a request for the Supreme Court to hear the case. Trump must hope that four justices will vote to hear the case and that a fifth will retain office; he needs both to prevent the matter from resuming under Chutkan. If the ruling is not stayed, the case could go to trial in May.

If the Supreme Court hears the case and stays the ruling, even on a likely accelerated schedule, it could take until the end of June for a ruling. That would mean the earliest possible trial would take place in the thick of the presidential campaign, which raises a host of issues that could convince Chutkan or a higher court to pump the brakes.

With the Supreme Court already set to hear arguments this week on whether Trump should be disqualified from the ballot, it is not difficult to imagine that the justices will make this ruling, especially in light of the lower courts’ comprehensive and persuasive opinion . On the other hand, it is not difficult to imagine the judges deciding to take up the fight and provide a final solution to a case of this magnitude. Their decision could be crucial given the crucial question of whether the lawsuit reaches a verdict before the campaign does.

Harry Litman is the host of the

Talking Feds Podcast




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