The U.S. Court of Appeals for the D.C. Circuit hears oral arguments on Tuesday over Donald Trump’s claimed immunity. What the three-judge panel decides, and how quickly, will help to determine whether and when the federal election interference trial proceeds. Trump’s bid is a long shot, but given its implications, it’s important to understand the issues at play.
The former president argues that he has absolute immunity from prosecution for official acts taken as president. For Trump to succeed, that requires finding not only that such criminal immunity exists but that it covers the alleged conduct in the indictment. He also claims that, because he was acquitted of inciting insurrection in his second impeachment, double jeopardy principles bar his prosecution.
Smith points out in his brief that “[n]o historical materials support the defendant’s broad immunity claim” and that even if some form of criminal protection exists, it wouldn’t cover Trump because the indictment against him contains “substantial allegations of a plot to overturn the election results that fall well outside the outer perimeter of official Presidential responsibilities.” On the double jeopardy claim, the special counsel notes that impeachment proceedings are separate from criminal ones, so that political process didn’t place him in jeopardy in the first place.
On top of Trump’s and Smith’s arguments, outside parties have also chimed in. These amicus briefs don’t always play a significant role in court cases, but they might here, because the panel alerted the lawyers to be prepared to address “discrete issues raised” in these outside filings. One of them pushes a point that not even the special counsel raised: that the appeals court doesn’t have jurisdiction to hear Trump’s claim at this early stage of the case. If so, that could theoretically speed up the timeline. But even if the panel latches on to that point, the judges might still address the immunity issue to be safe in issuing a solid ruling.
Given the long odds facing Trump’s appeal and the likelihood that the biggest win he gets is any delay of the scheduled March 4 trial in Washington, a pressing question is when the panel will issue its decision. The loser, of course, will seek further appeal up through the Supreme Court, though the justices don’t have to get involved if they don’t want to. The D.C. Circuit is hearing the case on an expedited timeline, so we can expect a quick ruling. How quickly we don’t yet know, but the judges’ questioning of the lawyers Tuesday should give a better sense of what their ruling will look like when it comes. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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