“Freakout stage”: Experts alarmed over delay in Trump case — as Supreme Court danger looms

Legal observers are flummoxed over the delay in D.C. Circuit Court of Appeals immunity ruling

By Igor Derysh

Managing Editor

Published February 5, 2024 8:54AM (EST)

Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)
Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)

Some legal experts are growing anxious about how long it is taking a D.C. Circuit Court of Appeals panel to rule on former President Donald Trump’s presidential immunity claim.

Trump appealed U.S. District Judge Tanya Chutkan’s ruling rejecting his argument that presidential immunity shields him from election subversion charges because he committed the acts while in office. A three-judge panel heard arguments last month but has not issued a ruling as the case remains stayed. Any ruling is expected to be appealed to the Supreme Court.

“I am officially now at the freakout stage. I’ve resisted that for a long time,” former acting Solicitor General Neal Katyal told MSNBC on Sunday, calling the delay a “real problem.”

“I think we’re now at the point, to use a different legal phrase, that ‘justice delayed is justice denied,’” Katyal said. “I can’t imagine a more compelling need for speed than the idea that American citizens deserve to know before the election whether a candidate for office is a felon and an insurrectionist. And it’s even more galling to me because this is an easy case. There is no responsible constitutional scholar who thinks Donald Trump is right, that there is absolute immunity.”

Former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller’s team, said he was “in violent agreement” with Katyal, arguing that there “really is no reason” for the delay since Trump’s immunity claim is “absurd” and “preposterous.”

But Georgia State Law Prof. Anthony Michael Kreis argued that there is no reason to freak out just yet, noting that the court is considering “three other issues in addition to the immunity claim.”

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“Far from delaying, judges are working a relative lightning speed. Would I like to have had a decision already? Yes. Is there a huge difference between waiting 14 days or 30? No,” he tweeted. “If a month goes by without any word, then I’ll start to get anxious. But, I think the prospect of a well reasoned decision that gets a cert denial from SCOTUS is better than a quick decision that causes a real delay.

“Folks are not considering the major delay that would be avoided if the DC [Circuit] issues a decision that does not get a cert grant— the Supreme Court taking up an appeal is a real danger in terms of derailing the Trump trial in Washington—not a couple of extra days in the DC [Circuit],” he added.

Judge Karen Henderson, a George H.W. Bush appointee, during arguments, suggested that the case could be sent back to the trial court for more analysis on whether Trump’s indicted actions could be considered official acts.

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MSNBC legal analyst Lisa Rubin warned last week that "that would be the worst of all worlds, because that can mean sending the case back to Judge Chutkan to determine which aspects of the indictment are worthy of immunity and which are not. And that could even further elongate case beyond the appellate process.”

Rubin theorized that the other two judges assigned to the case may be “really putting some pressure on Judge Henderson to try to get on board and see if they could do something unanimously.”

National security attorney Bradley Moss predicted that either Henderson is “writing a dissent that is taking time” or the “panel is writing an epic opinion so comprehensive it’s meant to be the final word and SCOTUS won’t even take it up.”

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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Aggregate Donald Trump Jack Smith Politics Tanya Chutkan