The Weekend Wrap: January 7, 2024

D.C. Circuit to hear arguments on Trump immunity

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

D.C. Federal Case - January 6 Allegations

D.C. Circuit Argument on Trump’s Immunity Claim: The briefs are all filed in the appeal before the D.C. Circuit concerning Trump’s claim of absolute presidential immunity. Oral arguments are this Tuesday, the ninth. The argument is set to start at 9:30. You can listen to the live stream at this link: https://www.cadc.uscourts.gov/internet/home.nsf/content/oral+arguments

The D.C. Federal Courthouse

Look for the three-judge panel to rule very quickly. Assuming he loses, Trump can ask the entire court to take up the case en banc and then seek review by the U.S. Supreme Court. All of this will further delay the trial. Jack Smith has asked the D.C. Circuit to order that the case return to Judge Chutkan five days after the court’s decision instead of the usual thirty days, which will at least require Trump to move more quickly.

An interesting amicus brief filed by a nonprofit called American Oversight has been generating a lot of buzz among legal commentators. (“Amicus” is short for amicus curiae, or “friend of the court.” It refers to a brief filed by someone who is not a party to the case but has a particular interest and expertise that the court might find useful. Whether to accept the brief is up to the court’s discretion. It did accept this one.)

American Oversight argues that Trump has no right to a pretrial appeal on the immunity issue at all. It claims the Supreme Court has allowed such appeals only when a right to be free from trial is explicitly guaranteed in the Constitution, such as the Speech or Debate clause that applies to Congress. There is no corresponding explicit provision for presidential immunity; Trump is arguing that it is implied by the structure of the Constitution and nature of the presidency. But because there is no presidential immunity spelled out in the Constitution, the group argues, Trump can appeal on this issue only after trial if he is convicted, as is true with other legal claims. The D.C. Circuit has no jurisdiction to hear the appeal at this stage.

Jack Smith didn’t even make this argument and seemed to concede that Trump has a right to a pretrial appeal. Most observers, including me, agreed. But the American Oversight brief makes a compelling case.

The court always has an obligation to consider whether it has jurisdiction, even if the parties don’t challenge it. The three-judge panel entered an order directing the parties to be prepared to address any issues raised in amicus briefs - which will almost certainly include this issue. It could become a major focus of the arguments on Tuesday.

If the court were to rule that it has no jurisdiction, it would immediately send the case back to Judge Chutkan to proceed to trial. Trump could appeal that order but would not be guaranteed a pause in the proceedings while he did so - he would have to seek a stay, and might not get it. This will be very interesting issue to watch and could put the case back on a fast track for trial.

Defense Moves to Have Prosecutors Held in Contempt: Last week I discussed how, despite the stay in the trial court proceedings, Jack Smith (a/k/a the Energizer bunny) was continuing to file his pleadings on the original schedule. His goal is to have as much as possible completed so the case can move to trial quickly once it returns to Judge Chutkan.