With Donald Trump filing his reply brief on Tuesday in his immunity appeal, briefing is now complete and the next big thing to happen is oral argument on Jan. 9. One interesting aspect to watch for in that hearing will be whether the three-judge panel is receptive to an argument that neither Trump nor special counsel Jack Smith has raised: that the court doesn’t even have the authority to consider the merits of Trump’s appeal at this time.
That view comes from an amicus brief by the nonprofit American Oversight, which urges the U.S. Court of Appeals for the District of Columbia Circuit to dismiss the appeal and send the case back to U.S. District Judge Tanya Chutkan “for prompt trial and judgment without any further delay.”
The group cites Supreme Court precedent for the proposition that challenges are only allowed at this early stage of a criminal case if they’re based on claimed rights that would stop a trial from happening in the first place, and those rights are limited to what's explicitly set out in a statute or the Constitution. Trump claims presidential immunity and that, because of double jeopardy principles, his second impeachment acquittal bars his prosecution. But because those arguments don’t rest on explicit guarantees against being tried, the American Oversight brief argues, he can’t raise them at this point.
If there’s no jurisdiction even to entertain Trump’s challenge right now, then the case could go back to Chutkan more quickly, potentially giving better odds of proceeding to trial as scheduled on March 4. Of course, there’s no guarantee that the panel will adopt this argument or how exactly that would affect the trial schedule. But notably, the appeals court on Tuesday said the lawyers need to be prepared to address arguments raised in amicus briefs on Jan. 9. So it may be something the panel is seriously considering.
Therefore, while the D.C. Circuit is unlikely to greenlight Trump’s broad immunity claim — which, as Smith observed, could lead to a number of nightmare scenarios — the panel could also decide it doesn’t have the power to decide. The oral argument may give us a better indication of whether and how the court will exercise its power.
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