In December, when a federal appeals court agreed to hear former President Donald Trump’s sweeping claims to be immune from charges of plotting to overturn the 2020 election, it laid out a lightning-fast briefing schedule, asking the defense and prosecution to file their papers on successive Saturdays during the Christmas and New Year’s holidays.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit also moved with unusual alacrity in setting up a hearing for arguments on the issue, scheduling the proceeding on Jan. 9, just one week after all of the papers were submitted — a remarkably short window by the standards of the judicial system.
But after sending up what appeared to be clear signals that they intended to swiftly resolve this phase of the immunity dispute — which lies at the heart of both the viability and timing of Trump’s trial on the election subversion charges — the appeals court judges have yet to issue a decision.
The implications are already coming into focus. On Friday, the U.S. District Court judge overseeing election case, Tanya Chutkan, formally scrapped her plan to start the trial March 4. She was bowing to the reality that time had run out to get the proceeding going by then, mostly because of the wrangling over Trump’s immunity claim, and said she would set a new date “if and when” that matter is resolved.
The disconnect between the expectations set up by the panel’s early moves to expedite the case and the weeks that have now accumulated without a ruling has captured the attention of some legal experts who are closely watching the case.
It has also caught the eye of Trump’s lawyers. Each day that passes without a ruling bolsters their strategy of seeking to postpone the trial until after the presidential race is decided.
“It is surprising, given how quickly they moved to have this appeal briefed and argued, for the court to not yet have issued a decision,” said Stephen I. Vladeck, a University of Texas at Austin law professor who specializes in federal courts. “It’s surprising both just because of how fast they moved and because of the broader timing considerations in this case — both the March 4 trial date and the looming specter of the election.”
It is impossible at this point to gain real insight into what is going on among the members of the panel, which is composed of two judges appointed by President Joe Biden and one placed on the bench by President George H.W. Bush.
The latter judge, Karen L. Henderson, had previously dissented from expediting the immunity appeal and has voted in Trump’s favor in several previous politically charged cases. As the panel’s senior jurist, Henderson has the authority to write the opinion if she is in the majority. And she faces no deadline to complete the job.
Vladeck said that many people in the legal community had been speculating about what Henderson’s role in the delay might be, though he also noted that no formal rule prevented the other two judges on a panel from moving ahead in issuing a ruling on their own.
While that would be a “breach of judicial decorum,” he said, Henderson’s colleagues — Florence Y. Pan and J. Michelle Childs — could in theory release a decision without her.
One possibility behind the delay is that the panel is deadlocked on the issue of immunity, though that would seem unlikely given that all of three jurists expressed some skepticism about Trump’s claims at the hearing in Washington last month.
It could also be that the judges agree that Trump does not enjoy immunity from prosecution but are struggling to reach a consensus on how to frame their decision on one of the most momentous questions about presidential power that courts have considered in years.
Vladeck said the panel would benefit — if only in terms of public opinion — by reaching a unanimous decision both in reasoning and outcome. The virtues of avoiding the appearance of a divided panel, he noted, are likely worth taking “a few extra days — or even a few extra weeks.”
The appeals process began in early December, when Trump’s lawyers asked the appeals court to reverse Chutkan’s denial of his immunity claims. Chutkan also froze the underlying case, imperiling the trial’s proposed start date.
Even if the immunity issue is resolved in the coming weeks, it is not clear how quickly the case could go to trial. Chutkan has scheduled another trial in her courtroom, which could last a week or so, starting April 2. And she has hinted in court papers that, in the interest of fairness, she wants to ensure that Trump’s lawyers get the time to which they are entitled to prepare for trial.
The timing is also likely to be determined by the Supreme Court, assuming one side or the other appeals the ruling of the three-judge panel to the justices.
The Supreme Court could decline to hear the question and allow the appeals court’s ruling to stand — a move that may hold attraction for the justices. They are already embroiled in another politically fraught issue involving Trump, the question of whether states can disqualify him from the ballot this year for his role in the Jan. 6 assault on the Capitol.
But if the court picks up the immunity appeal, it will have to make the equally important decision about how to fast to move in hearing it.
Depending on the justices’ actions, the election interference case could go to trial in U.S. District Court in Washington as early as April or it could be delayed until after the election. If that occurs and Trump wins, he could ask his Justice Department to throw the charges out. Even if the charges were left in place, the proceedings against him could be frozen for as long as he is in office, under a long-standing Justice Department policy against prosecution a sitting president.
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