The new year is beginning with needless uncertainty as to when Donald Trump will face legal accountability for his Washington, D.C. criminal charges related to the Jan. 6 insurrection. His trial, which was scheduled to commence March 4, is paused, as are extensive pretrial proceedings required to prepare the case. But it need not be: The stay can and should be lifted by the D.C. Circuit.
Last month, Judge Tanya Chutkan (correctly) rejected Trump’s motions to dismiss special counsel Jack Smith’s grand jury indictment on grounds including that he was immune from prosecution. In turn, Trump brought what’s known as an “interlocutory” appeal — meaning an immediate appeal before a final judgment in the lower court. With the agreement of both sides, Chutkan stayed “any further proceedings that would move this case towards trial or impose additional burdens of litigation” on Trump until the appeal is decided by the D.C. Circuit (and potentially the Supreme Court).
We understand why both parties want these underlying questions to be reviewed before trial, yet the default rule is that appeals courts must wait until the end of a trial to hear a case. It is the rare exception, not the norm, to accept an interlocutory appeal. But here, the D.C. Circuit has the power to reject Trump’s claims of presidential immunity — and simultaneously find that this appeal cannot be brought until the trial has been completed, and thus that the temporary stay should be removed.
There is strong Supreme Court precedent indicating that appellate courts do not have jurisdiction to hear Trump’s immunity appeal now. In Midland Asphalt Corp. v. United States, Supreme Court Justice Antonin Scalia, writing for a unanimous court, said that a trial court’s decision is not immediately appealable unless the claim “rests upon an explicit statutory or constitutional guarantee that trial will not occur.” In 2010, future Justice Neil Gorsuch, then a judge on the 10th Circuit Court of Appeals, succinctly encapsulated the Midland Asphalt rule: “Only when a statutory or constitutional provision itself contains a guarantee that a trial will not occur — may courts of appeals intervene prior to a final judgment to review the defendant’s claimed ‘right not to be tried.’”
In Midland Asphalt, the court identified only two constitutional guarantees against trial that had historically been considered explicit enough to warrant interlocutory appeal: the Speech or Debate Clause (unique protections expressly afforded to members of Congress) and the Double Jeopardy Clause of the Fifth Amendment. By contrast, one of the court’s examples of a ruling not subject to interlocutory appeal was the denial of a claim of prosecutorial immunity. Chutkan’s denial of Trump’s claim of presidential immunity should be treated in the same manner.
As a new amicus brief filed by American Oversight argues, Trump’s assertion of presidential immunity rests on no explicit constitutional or statutory guarantee against trial, and so the D.C. Circuit should end the appeal and lift the stay. (One of the authors, Sawyer, is the executive director of American Oversight.) The D.C. Circuit has repeatedly applied Midland Asphalt in dismissing interlocutory appeals of immunity claims, including in a case where a former Cabinet secretary argued that he was immune on “structural separation of powers grounds,” like those that Trump invokes as the basis of his own alleged immunity.
A recent case in the 1st Circuit is particularly illuminating. In his D.C. Circuit brief, Trump equated his presidential immunity claim to judicial immunity. But in U.S. v. Joseph, the 1st Circuit held that an assertion of judicial immunity in a criminal case does not meet the Midland Asphalt standard for interlocutory appeal. Thus, under Trump’s own analogy, his immunity claim fails the test for interlocutory appeal. As Smith contends in his response to Trump’s brief, Trump’s presidential immunity claim is akin to judicial or prosecutorial immunity; contrary to Trump’s position, Smith persuasively argues that these two categories of immunity protect prosecutors and judges from civil liability, “but not from federal prosecution.” Notably, under any circumstance, neither have been found to fulfill Midland Asphalt’s criterion for interlocutory appeal.
Perhaps in anticipation of a challenge to the appeal under Midland Asphalt, Trump has a backup argument: Since he was impeached by Congress for his conduct leading up to Jan. 6, but not convicted, he cannot be criminally prosecuted now.
Because this argument cites the impeachment judgment clause of the Constitution, it would come closer to the explicit text rule of Midland Asphalt if it were credible — but it is not. His claim misinterprets that clause of the constitution, and well-established D.C. Circuit precedent requires his claim to be nonfrivolous in order to grant a stay.
The Constitution’s impeachment clause provides that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment….” In other words, a president who is convicted in a Senate impeachment trial may later be prosecuted criminally — meaning that double jeopardy principles do not apply. Trump contends that the clause means that a criminal prosecution is only possible following Senate impeachment, and that one who is acquitted cannot be criminally prosecuted. But that is not what the explicit text says. It does not say conviction is a prerequisite for later prosecution. “Nevertheless” does not mean “only then.” Trump also claims that “double jeopardy principles” are implicated by the Impeachment Judgment Clause. But Trump was never in jeopardy: the impeachment wasn’t a criminal trial, and the Double Jeopardy Clause only applies to criminal trials. Moreover, the Double Jeopardy Clause prohibits successive prosecutions regardless of whether the prior one resulted in acquittal or conviction. And the clause applies only when the same crime is charged successively, which is not true here. Does that mean the D.C. Circuit cannot also address the underlying immunity questions if it rules that Trump is not entitled to appeal his immunity claim before trial? Absolutely not. Indeed, in order to preserve the March 4 trial date, and because the circuit court does not know how the Supreme Court may rule on the Midland issue, it should reach the merits of the immunity claim now. It can do so under D.C. law — the court has previously exercised hypothetical jurisdiction, which simply allows the court to rule on both the threshold jurisdiction question and consider the underlying merits of an appeal. Therefore, the D.C. Circuit should find that Trump’s immunity appeal is premature and the trial must commence first, and also, alternatively, that presidential immunity does not exist. Doing so would prevent further unnecessary delay, in the event the Supreme Court believes that an interlocutory appeal is proper here — as there would already be an appellate ruling on the merits for the court to consider. What is important now is that the case proceed without undue delay from the appellate process. While Trump is entitled to no less process than any other defendant, he is not entitled to more. A protracted delay is the end goal of most any defendant, especially one with the distinct prospect of never seeing legal accountability for the charged crimes. Maintaining Judge Chutkan’s stay would be another instance of the rules bending for Trump, at a cost to that most precious American commodity, the bedrock principle that no one is above the rule of law. The D.C. Circuit should lift the stay and permit the trial to go forth as scheduled.
Andrew Weissmann
Andrew Weissmann is a legal analyst for MSNBC and a professor of practice with the New York University School of Law's Center on the Administration of Criminal Law. Previously, he was a lead prosecutor for Robert Mueller’s special counsel’s office and led the Justice Department’s Fraud Section. He co-hosts MSNBC’s podcast “Prosecuting Donald Trump.”
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action.
Heather Sawyer
Heather Sawyer is executive director of American Oversight, a nonprofit organization that promotes government accountability. 
