As all eyes watched every word presented by Donald Trump and federal prosecutors ahead of next week’s crucial immunity arguments, a third slipped through the side door with a brief That could dramatically frustrate the former president’s efforts to take advantage of the issue to delay it as much as possible.
The watchdog organization American Oversight, which is not a party to the case, successfully petitioned the U.S. Court of Appeals for the D.C. Circuit to accept its friend-of-the-court brief on the grounds that it provides a “unique perspective.” .
In fact it does. The brief makes the apparently compelling argument that the court should not hear this appeal at all because it lacks jurisdiction, that is, the power to consider it in the first place. If the court agrees, it would mean dismissing the appeal and sending the case back to U.S. District Judge Tanya Chutkan, abruptly aborting Trump’s best chance to delay the Jan. 6 federal trial.
Trump’s argument is that he has the right to avoid trial because the Constitution prohibits impeachment for conduct he engaged in as president, at least if it was within the “outer perimeter” of his official duties. Most observers, including me, think Trump will lose the claim on the merits, but the U.S. Supreme Court will likely have to make that critical determination. The question is when: before the trial, to freeze the case or after.
Chutkan has decided that he cannot move forward with the trial until it is resolved, reasoning that immunity is a right not to go to trial in the first place. That suggests that even if Trump loses his lawsuit, he will be able to drag out the process for at least a couple of months, delaying the start of probably the most important of the four criminal trials he faces. The trial, initially scheduled for March, will be delayed as Trump’s campaign to return to the White House progresses.
Enter the American Oversight report, written by attorneys at the Washington-based firm Arnold & Porter. The brief is based on a unanimous opinion of the Supreme Court in 1989, Midland Asphalt Corp. v. United States, written by the late Justice Antonin Scalia. The defendant in the criminal case, Midland Asphalt, had unsuccessfully requested that the charges be dismissed based on the prosecution’s alleged violation of grand jury rules.
The Supreme Court held that neither it nor the circuit court had jurisdiction to hear the case on an “interlocutory appeal” or before trial. As with the vast majority of issues that can arise at trial, the court ruled, this one could only be considered after a conviction.
The court emphasized that in criminal cases, the compelling interest in prompt trials requires that courts apply the doctrine of interlocutory appeal “with the utmost rigor.” The justices determined that federal courts have jurisdiction over such appeals only if they are filed under a constitutional or statutory provision that expressly grants the defendant the right not to go to trial.
Since the Midland Asphalt opinion, the court has identified only three categories of motions that can be considered before trial in criminal cases: motions to reduce bail and those relating to the double jeopardy clause of the Fifth Amendment of the Constitution, and the speech or debate clause, which protects legislators from being “questioned” (i.e., judged) at all.
Therefore, Trump’s immunity argument does not appear to fit within the Midland Asphalt exceptions. It is not based on any explicit constitutional guarantee. And the D.C. Circuit Court previously held that a right based on constitutional principles like the separation of powers is not enough.
The Justice Department and Trump had been assuming that the D.C. Circuit Court has jurisdiction based on Nixon v. Fitzgerald, which established broad, but not infinite, immunity from lawsuits over a president’s conduct while in office. But that civil case was not subject to the “maximum rigor” standard that the Supreme Court has applied to criminal trials. It also predates the Midland Asphalt opinion, which the Justice Department, somewhat puzzlingly, did not mention.
There may be a reason why the Midland Asphalt doctrine doesn’t apply here, but I can’t think of one.
Jurisdiction is an issue that courts take very seriously, and I think the DC Circuit Court should, and probably will, consider the argument that it lacks jurisdiction very carefully. He has already ordered the parties to address American Oversight’s position in oral argument on Tuesday, when it will likely come under intense questioning.
If the argument is successful, it will be an appellate version of the kind of Perry Mason moment that rarely happens in a real courtroom. With a wave of his jurisdictional wand, Trump would be back in district court preparing for a slightly delayed trial.
Harry Litman is the host of Podcast “Talking about federals”. @harrylitman
