For weeks now, former President Donald Trump and U.S. District Judge Tanya Chutkan have been locked in a parade of Trump motions and appeals tied to his federal election interference indictment. On Dec. 1, Chutkan denied Trump’s motions to dismiss his federal indictment on presidential immunity and constitutional grounds. Trump promptly appealed that denial. It’s all part of the same strategy to delay his criminal trial in Washington, D.C., until after November 2024.
To defeat the legal scheme designed to postpone Trump’s March 4 criminal trial, special counsel Jack Smith is getting creative. On Monday, he asked the Supreme Court to step in and decide Trump’s presidential immunity appeal directly, avoiding a potentially extensive back-and-forth in the lower courts. The high court has already replied to Smith, saying it would consider on an expedited basis whether to hear the case.
To defeat Trump’s legal scheme designed to postpone his March 4 criminal trial, special counsel Jack Smith is getting creative.
This an uncommon strategy, invoked by the government in United States v. Nixon almost 50 years ago to expedite the appellate timeline. But by following the blueprint used in 1974 by Special Prosecutor Leon Jaworski to compel President Richard Nixon to release key White House tapes, Smith could stop Trump from pushing his Washington trial beyond Election Day.
On May 20, 1974, a district judge ordered Nixon to comply with the special prosecutor’s subpoena for key White House tape recordings in connection with a criminal trial of six of Nixon’s closest aides. That criminal trial was scheduled to begin in less than four months, on Sept. 9.
Four days later, Nixon’s lawyers appealed to the U.S. Circuit Court of Appeals for Washington, D.C. To prevent being bogged down in that court, federal prosecutors petitioned the Supreme Court to bypass the Court of Appeals and rule on Nixon’s objections directly. Unlike what Trump would be likely do today, Nixon subsequently asked the Supreme Court to take the appeal directly.
This unusual procedure, known as a petition for certiorari before judgment, succeeded. On June 15, the Supreme Court agreed to decide the appeal. Briefs were filed quickly, and the justices heard oral argument on July 8. On July 24, the court issued a final unanimous ruling ordering Nixon to turn over White House tapes. Their disclosure led directly to Nixon’s resignation on Aug. 8.
The entire appellate process took only 65 days.
Holding Trump accountable for his role in the Jan. 6, 2021, insurrection and the broader conspiracy to prevent the peaceful transition of power to President Joe Biden hinges on a similarly speedy appellate schedule.
In the latest appeal, Trump has challenged Chutkan’s decision denying his two motions to dismiss. Trump is asserting an unprecedented claim of absolute presidential immunity from criminal prosecution and a second claim of double jeopardy. In the latter, Trump contended that the Senate’s acquittal in his second impeachment trial barred the subsequent criminal prosecution on double jeopardy grounds.
Under federal law, both decisions are appealable to the Court of Appeals in Washington as final orders. Trump also asked Chutkan to pause the federal criminal prosecution until the appeals are resolved.
The stakes are enormous. Any significant delay in the federal trial could be catastrophic to the rule of law.
The stakes are enormous. Any significant delay in the federal trial could be catastrophic to the rule of law.
If Trump can use the appellate process to postpone his criminal trial until after the November presidential election and he wins, he will be able to dismiss all federal criminal charges against himself.
Skeptics of Smith’s maneuver may warn that a conservative Supreme Court favors Trump, but that risk exists anyway. Trump will undoubtedly ask the Supreme Court to review an unfavorable decision by the Court of Appeals. It is better to find out sooner rather than later whether the Supreme Court will rule on Trump’s arguments.
Moreover, the Supreme Court can act very quickly if the constitutional stakes are high. When The New York Times and The Washington Post began publishing the secret Pentagon Papers in 1971, the government sued to block further publications. The Supreme Court ruled in favor of the newspapers a mere 17 days later. Importantly, the filing of Trump’s notice of appeal is only the beginning of the appellate process. Even after a three-judge panel issues a ruling, Trump’s lawyers can ask for a further hearing by all judges on that appellate court, known as an en banc hearing. Unlike most rulings in a criminal case, which cannot be appealed until the end of the case, these legal defenses, if successful, not only bar convictions, but also bar defendants from having to stand trial at all. While the Supreme Court has never ruled on whether a former president is absolutely immune from prosecution for criminal acts while president, Chutkan’s opinion eviscerated this contention, as well as Trump’s double jeopardy claim. Thus, the concern for Smith is not that Chutkan’s decisions will be reversed. Trump’s arguments are weak. The risk is that the appellate court decisions will come too late to allow the trial to occur in time. That’s what Smith is seeking to avoid. He must know that resorting to the well-worn playbook of asking the D.C. Circuit to expedite briefing and oral argument isn’t the solution. For example, the Court of Appeals expedited Trump’s appeal of Chutkan’s so-called gag order. Even so, weeks elapsed between the district judge’s entry of a partial gag order on Oct. 29 and the appellate ruling on Friday upholding but narrowing the scope of that order. And that may not be the end of the appellate process, as Trump’s lawyers could ask all judges on the Circuit Court of Appeals to reconsider Friday’s ruling or seek Supreme Court review. Smith has less than 90 days until the scheduled start of Trump’s criminal trial in Washington. Thinking outside the box is required to prevent Trump’s appeals from scuttling that trial date and potentially postponing it for months. Thankfully, Smith knows his history.
Michael Conway
Michael Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Richard Nixon in 1974. In that role, he assisted in drafting the committee's final report to the House in support of the three articles of impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. 
