Good things, as the English proverb reminds us, come to those who wait. That proverb aptly describes Tuesday’s 3-0 decision the United States Court of Appeal for the District of Columbia which artfully and emphatically rejected former president Donald Trump's claim that he is immune from prosecution for alleged criminal Acts he carried out while President.
Let’s not bury the good news: The panel took the time to write an opinion whose quality could render unnecessary Supreme Court review which would cost additional months of delay. The new ruling, which some legal experts worried was too long in coming, was actually speedy compared to ordinary timelines for resolving appeals.
And it delivered what The Atlantic’s George Conway called an “airtight” and devastating rebuke to the former president.
Importantly, the order accompanying the decision reinforced its message that Trump’s attempts to delay his election interference trial with untenable appeals may be short-lived. That order said that the stay of Trump’s trial in the district court would remain in effect only through February 12 unless Trump files a petition in the Supreme Court by that date. In other words, the court was whispering loudly in Trump’s ear, “We’re onto your game of delay, and we’ll have no part of it.”
That message is enormously significant to the health of American democracy. Voters have a right to know before they cast their November ballots whether one of the major party’s presidential candidates committed crimes as he sought to destroy the peaceful transition of power after his 2020 election defeat.
Cutting through the legalese in the court’s order, it shortens, potentially by months, the waiting time that ordinary appellate rules allow before a losing party must make its next move up the appeals court chain. The D.C. panel’s judges are, in effect, pressing Trump to appeal to the Supreme Court now and bypass a request for all the DC Circuit judges to hear his case.
Technically, Trump still has the option of asking the entire D.C. Circuit bench to extend the stay of the three-judge panel’s order beyond February 12, while he seeks the entire court’s review of the panel’s ruling. Ordinarily, the full court would almost certainly grant an “administrative” stay that extends only a couple more weeks while it considers his petition. That would give the full court time to quickly consider Trump’s petition, adding to the delay.
Trump’s lawyers may well figure, however, that the panel would not have issued their order without checking in with the chief judge of the full court. That could easily mean that February 12 is a date certain for the case to be returned to the district court for Trump to be tried, even if he petitions the full court for rehearing. His lawyers might be smart not to take that risk.
Before looking more closely at the calendar and what all of this means for the timing of Trump’s trial, it’s worth noting how total a defeat Trump suffered in the three-judge panel’s opinion. It rejected his contentions saying about each of them that they were “unsupported by precedent, history, or the text and structure of the Constitution.”
Most importantly, the panel cut Trump’s imperial pretensions down to size. “For the purpose of this criminal case,” they said, “former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”
That echoes words from 1807 by the great Chief Justice John Marshall in a case involving former Vice President Aaron Burr: “[T]he president is elected from the mass of the people and, on the expiration of the time for which he is elected, returns to the mass of the people again.”
In other words, a former president gets no less legal protection than other citizens get, but also no more.
The D.C. appellate court noted that accepting citizen Trump’s claim that a president has “unbounded authority to commit crimes” would “neutralize the most fundamental check on executive power — the recognition and implementation of election results.”
It refused to “sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.” The court called him out for advancing a claim that “would collapse our system of separated powers by placing the President beyond the reach of all three Branches.”
And then the coup de grace: The judges threw Trump’s lawyers’ words during his second impeachment right back at him:
At Trump’s 2021 impeachment proceedings for incitement of insurrection, his counsel argued that instead of post-Presidency impeachment, the appropriate vehicle for “investigation, prosecution, and punishment” is “the article III courts,” as “[w]e have a judicial process” and “an investigative process . . . to which no former officeholder is immune.
New polling shows that that decision will find a receptive audience among the American public, with two out of 3 people agreeing that Trump should not get immunity.
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Meanwhile, here’s what we think will unfold in the weeks ahead.
It’s always dicey to project what the Supreme Court will do once Trump files his petition to the Court. Recall, however, that back in December, when Jack Smith sought early review of this matter, the justices took only 11 days to turn him down. (The Court clearly preferred to see what the D.C. Circuit would do.)
Let’s say it takes twice as long this time. That puts us into early March. It takes five justices to issue a further stay and only four justices to grant review. Still, we believe the odds are good that the Court may choose not to take the case.
The Court will just have decided the question of whether Trump’s engagement in an insurrection after the 2020 election disqualifies him from future office under section three of the Fourteenth Amendment. Given the irrebuttable reasoning and conclusion in the D.C. Circuit panel’s new ruling, the justices may well reason there is no need to involve themselves in the matter.
A denial of certiorari could mean a DC trial before federal district court Judge Tanya Chutkan as early as mid-April. That would allow plenty of time for a jury to be empaneled, to hear evidence, and deliver its verdict months before people start voting for president.
Even if the Supreme Court decides to hear the former president’s case, the Court might follow the example of its predecessor’s expeditious handling of the 1974 case of U.S. v. Nixon, the Watergate tapes case – it took only three months. Here, unlike there, the D.C. Circuit has given the justices a roadmap, and a really excellent one at that.
A three-month decision would land in early June. The ruling is all but certain to affirm the D.C. Circuit holding that Trump is not immune from prosecution. Then the trial could start in early to mid-July.
Not optimal in light of the presidential campaign, but the Justice Department should be willing to proceed, given that the delayed start date would have been completely of Trump’s doing.
In the end, we think that what the D.C. panel has done makes a May or June trial a more probable scenario. Vitally, the ruling does so by sticking to precedent and logic like magnets to steel. And the decision states in no uncertain terms what Donald Trump does not ever want to hear: No one, not even a former president, is above the law
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