Tag Archives: D.C. Circuit

Trump vs. United States — The Immunity Argument

Earlier this week, the United States Supreme Court announced that it would hear arguments in the case of Trump v. United States, regarding Trump’s claim that he is immune from prosecution for his role in the January 6 insurrection because his actions that day were official actions.  They also announced that arguments will be held this term — on April 22.  There is a lot to unpack in this order.

Let’s start with the procedural posture of this case.  Late last year, the trial judge (sitting in the federal district court for D.C.) denied Trump’s motion to dismiss the indictment based, in part, on his claim of absolute immunity for actions taken while President.  He then filed an “interlocutory” appeal of that ruling.  (In most cases, parties can only appeal when a case is over.  There are a limited number of circumstances in which a party can immediately appeal from a pre-trial ruling,)   The appellate court (the D.C. Circuit) expedited the appeal (even more so than is normal for interlocutory appeals).  Despite the D.C. Circuit expediting the case, the special prosecutor, In December, asked that the U.S. Supreme Court take the case without waiting for a ruling from the appellate court (something that is rarely done).    But, on December 22, the U.S. Supreme Court denied that request.

On February 6, the D.C. Circuit issued its opinion affirming the trial court.  Normally, there would be a brief period of time before the “mandate” (the formal order implementing the opinion and restoring the authority to the trial court to proceed).  But the panel that issued the opinion set a quick deadline of February 12 for Trump to get a stay of the mandate from either the full D.C. Circuit or the U.S. Supreme Court.  As such, on February 12, Trump filed for a stay with the U.S. Supreme Court.  Now, in most cases, once the stay were granted, the case would proceed on a normal schedule.  On a normal schedule, Trump would then ask for rehearing from the full D.C. Circuit.  If and when the D.C. Circuit declined to rehear the case (the ruling in almost all cases), Trump would then have ninety days (plus any extensions) to ask for certioarari (the formal order taking the appeal) from the Supreme Court.  In some cases, however, when the U.S. Supreme Court issues a stay, it will also treat the stay application as a petition for certiorari.  The special prosecutor, in his response to the stay application, while arguing for the U.S. Supreme Court to deny the stay, made the alternative argument that, if the U.S. Supreme Court did grant the stay, it should exercise that power to treat the stay application as a petition for certiorari and expedite the case. Continue Reading...

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The Oral Argument in United States vs. Donald J. Trump (a/k/a The Insurrectionist)

Today, at 9:30 a.m. Eastern Time, the United States Court of Appeals for the District of Columbia Circuit will hold oral arguments on Donald Trump’s appeal of the decision that he is not immune from criminal prosecution for the events of January 6.  Apparently, the accused intends to personally attend this argument.  (For the reasons discussed below, his attorneys are likely unhappy with the decision and Trump may throw a temper tantrum either during or after the argument.)  For the millions who are unable to make it to the federal courthouse, the D.C. Circuit will be livestreaming the audio of the argument.  And the recording will posted on the court’s website by the close of business today.

I am not going to spend time on the merits of the case because the merits are really one-sided.  The trial judge in this case is respected by her peers and her order thoroughly demonstrates why Trump’s claim of immunity has no factual or legal merit.  It will be affirmed.  Instead, this post is intended to help readers understand what will be happening.

The first thing to understand is that oral argument is the last part of the case.  Even at the state level, it is expected that the judges will have read the written arguments (formally known as briefs of the party).  If the judges have the time, they may also have looked at the relevant portions of the trial court records to answer any factual questions that they may have about the proceeding.  They may also have looked at the key cases cited by the parties to understand what those cases actually say (instead of how the attorneys have tried to spin them).  In short, the judges have almost certainly formed an opinion about the issues in the case, and oral argument is a last chance for the parties to correct any misimpressions that they judges may have. Continue Reading...

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