Several legal analysts have said that former President Donald Trump’s appeal he has presidential immunity may be the best chance of staving off his 2020 election trial.
In multiple filings in Washington, the former president’s attorneys have said he is immune from prosecution related to official actions he took as president. On Dec. 9, in submission to an appeals court, his attorneys wrote that he would appeal an earlier ruling handed down by U.S. District Judge Tanya Chutkan in the election trial.
“The filing of President Trump’s notice of appeal has deprived this Court of jurisdiction over this case in its entirety pending resolution of the appeal,” the Trump lawyers wrote last week. “Therefore, a stay of all further proceedings is mandatory and automatic.”
In arguing that the case should be tossed in its entirety, President Trump’s attorneys have said that subjecting former presidents to criminal prosecution for conduct related to their official responsibilities would weaken the presidency. Judge Chutkan dismissed that argument, saying it would give former presidents a “lifelong ‘get-out-of-jail-free’ pass.”
The approach of the courts in the coming weeks is likely to determine whether President Trump faces any trial ahead of the election despite facing four simultaneous criminal prosecutions. The federal election case has progressed the fastest of the four cases against the former president, and Judge Chutkan, an Obama appointee, has repeatedly denied his motions.
The earlier ruling from Judge Chutkan is the last one Trump will be able to appeal before the start of his trial, which is currently scheduled to begin in March.
“It is very possible that all of this extends well past when the trial is supposed to start,” Erica Hashimoto, a professor at Georgetown Law and an expert on federal appeals courts, told Reuters over the weekend. “If what former President Trump wants is delay, he can get delay this way.”
Meanwhile, Andrew Lourie, another defense lawyer and former Department of Justice Official, told the newswire service that there are “all kinds of possible ramifications from a delay in this particular case because of the circumstances of him potentially becoming the president.”
Another analyst, Stanley Brand, former House general counsel and now an attorney, told the Washington Post last week that the process could be drawn out because “we’re in a bit of procedural no man’s land, because although an immediate appeal on immunity issues is pretty well standard, the question is, this is a new case, and this is the first time we’ve had a former president indicted.”
But even though it can take months for appeals to move through the higher courts, the appeals court and Supreme Court could move to quickly resolve the case.
Jessica Roth, a Cardozo School of Law professor, told The Associated Press: “It’s a very clean, narrow legal issue, and the issue has been fully briefed by the parties and very well laid out in the opinion, so it’s not like considerable time is needed.”
“It’s a purely legal question that the courts could expedite and decide quickly,” she added.
If Trump regains the presidency, he would likely be able to pardon himself in the two federal cases or install leaders at the Justice Department who would shut them down. The two state cases could also be put on hold while he remains in office.
Appeal Filed
After the appeal was filed last week, Trump campaign spokesman Steven Cheung said in a statement that the former president’s “most sacred obligations and responsibilities as President was to ensure that the election process was conducted in a way that complied with the law, including investigating and challenging election fraud and irregularities,” referring to his statements made after the 2020 election.The spokesman added that President Trump “has absolute immunity from prosecution, and litigation, for carrying out his sworn and solemn duties as President.”
The D.C. Circuit Court of Appeals is expected to schedule dates for written briefs and oral arguments, though it’s not clear when those would be. The special counsel’s office, headed by Jack Smith, has yet to file a response to the Trump appeal.
The former president’s lawyers have indicated in previous filings that they would take their case all the way to the U.S. Supreme Court, if need be.
“The filing of President Trump’s notice of appeal has deprived this Court of jurisdiction over this case in its entirety pending resolution of the appeal,” Trump attorneys Todd Blanche and John Lauro wrote in the appeal notice. “Therefore, a stay of all further proceedings is mandatory and automatic.”
Other than the federal election case, which accuses the former commander-in-chief of illegally trying to overturn the 2020 contest, he also faces charges in Florida, Georgia, and New York. He has pleaded not guilty to all the charges, saying they’re part of an attempt to interfere in the 2024 election.
