The Court of Appeals for the D.C. Circuit denial of Donald Trump’s immunity request Tuesday was full and emphatic — so much so that she was able to put her election interference trial back on track to proceed before the November election.
THE notice is per curiam, which means that all three judges on the jury joined it and none was named as author. In this case, the form is intentional: it communicates a unanimity of purpose and a sense of importance. As the opinion says: “Whether a former president enjoys absolute immunity from federal criminal liability is a question of first impression. »
This may also be why the decision took longer than expected: every word had to be carefully crafted to the satisfaction of each judge.
The heart of the opinion is the forceful rejection of Trump’s appeal on the grounds that his outlandish position would violate fundamental principles of separation of powers. “At bottom,” the Court memorably noted, “former President Trump’s position would collapse our system of separate powers by placing the President beyond the reach of all three branches.” »
The Court also anchors its view on individual rights – namely the right to vote – on the basis that Trump’s arguments suggest “that a president has unlimited power to commit crimes that would neutralize the most fundamental check on executive power.” – recognition and implementation of the law.” Election Results.” The justices wrote that they could not endorse “Trump’s apparent assertion that the executive branch has carte blanche to violate the rights of individual citizens to vote and have their votes counted.”
This dual foundation of constitutional structure and individual rights places opinion on the most stable possible basis.
The opinion also contradicts a friend-of-the-court brief asserting that the appeals court did not have authority to hear appeal before trial based on the 1989 Supreme Court decision Midland Asphalt Corp. against the United States. He methodically arrives at the sensible conclusion, albeit somewhat at odds with the wording of this case, that the doctrine does not apply here. The justices say that while the case appears to apply on its own terms, the more important point is that immunity is a right that cannot be tried in the first place.
Almost as important as the court’s response to the unprecedented questions at hand is how the court handles the warrant: the formal declaration sending the case back to the trial court and U.S. District Judge Tanya Chutkan. Typically, such a warrant is issued at least 21 days after the decision, giving the loser time to request a in bench reconsideration of the panel’s decision by the full circuit court. Here, however, the panel clearly only gave Trump six days.
This means that if Trump fails to obtain a stay of judgment by Monday, the case will return to the trial court and resume its normal course. So, in practice, he doesn’t have time to look for a in bench repeat by the DC circuit, where its prospects would be remote anyway. Ensuring that there was no appetite for such a review among the other justices could partly explain the time it took the panel to rule.
Trump will therefore have to ask the Supreme Court for a stay. He is almost certain to do so and attach a request for the Supreme Court to hear the case. Trump must hope that four justices will vote to hear the case and that a fifth will uphold his term; he needs both to prevent the affair from restarting under Chutkan. He could be tried by May if the decision is not stayed.
If the Supreme Court takes the case and stays its decision, even on a likely accelerated timetable, it may have to wait until the end of June to issue its decision. That would mean the earliest possible trial would take place in the heat of the presidential campaign, posing a whole host of problems that could convince Chutkan or a higher court to pump the brakes.
With the Supreme Court already scheduled to hear arguments this week on whether Trump should be disqualified from the ballot, it’s not hard to imagine the justices ignoring that question, especially in light of overall opinion and convincing of the lower court. On the other hand, it is not difficult to imagine the judges deciding to enter the fray and provide a definitive solution to a case of this magnitude. Their decision could be crucial given the crucial question of whether the trial will reach a verdict before the campaign.
Harry Litman is the host of the “Talking the Federal Government” Podcast. @harrylitman
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