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New Trump appeal launches Jan. 6 trial race that could land at Supreme Court

Former president Donald Trump departs after speaking at a Commit to Caucus rally held at Whiskey River on Saturday, Dec. 2, 2023, in Ankeny, Iowa.    (Jabin Botsford/The Washington Post)
By Washington Post Staff Washington Post

Donald Trump filed notice on Thursday saying he will appeal a D.C. judge’s ruling that he was not immune from being charged with federal crimes for his efforts to undo the outcome of the 2020 election, either by his former role as president or the Constitution’s rules for impeachment.

The notice is a minor procedural step. But it sets in motion one of the most potentially consequential parts of Trump’s legal saga as the first former president to be charged with crimes. How and when the U.S. Circuit Court of Appeals for the District of Columbia and the Supreme Court handle his appeal could have a huge impact on whether Trump - who is again running for president - goes on trial before voters go to the polls in 2024, or ever.

Trump’s legal team says the charges that he conspired to obstruct Joe Biden’s 2020 victory should be thrown out for two reasons. First, his lawyers contend that he had presidential immunity. Second, they argue that charging him with trying to block the election results violates the legal principle of double jeopardy, because Trump was already acquitted at his congressional impeachment for his conduct leading up to the riot-marred Jan. 6, 2021 formal tabulation of electoral college votes.

Since a grand jury voted to bring the criminal charges this summer, prosecutors have sought to try Trump as quickly as possible. Trump’s lawyers have insisted their client needs and deserves more time, both as a defendant reviewing evidence and as a former president trying to win back the White House.

Appeals courts consider very few legal issues before a criminal case goes to trial and a verdict is reached. But questions of immunity and double jeopardy are often among the exceptions, because if the defendant is right that they cannot be charged, courts have held that they should not be forced to go through a trial at all.

And since the Supreme Court has never grappled with some of the legal questions at issue in Trump’s claims - particularly whether a president is immune from indictment and criminal prosecution for actions undertaken while in office, even after he has left office - many lawyers say they believe the courts will have to wrestle with those aspects of the Trump case.

The key issue, according to legal experts, is how long will the higher courts consider that question. Trump is scheduled to go on trial in Washington, D.C., starting March 4, and potential jurors in the nation’s capital have received notices that they are being considered for a three-month trial to start on that date. It would be the first of four criminal trials Trump could face, including a federal case involving classified documents in southern Florida; a state-level election-obstruction case in Georgia; and a state-level business fraud case in New York.

U.S. District Judge Tanya S. Chutkan’s 48-page opinion last week rejected all of Trump’s constitutional challenges, including immunity and that the indictment never should have been filed because it improperly tries to criminalize his constitutionally protected rights to speech and advocacy as a political candidate.

Now that Trump has filed his notice of appeal, the case before Chutkan cannot proceed to trial while the appeals court takes up his claims, legal analysts said. That makes the question of timing especially critical, with the other trials looming and the campaign season soon to be in full swing.

Some veteran trial lawyers estimate that if the appeals court rules against Trump and returns the case to Chutkan, it could take weeks more to complete preparations for trial.

Based on that calculus, some analysts say the three-judge panel that will hear the appeal first would have to rule on it soon after the New Year for a trial to be completed before next summer’s presidential nominating conventions. That is because Trump is expected, if he loses, to appeal to the full appeals court or the Supreme Court, seeking an injunction to stop the trial case from going forward while his arguments are again considered.

Any Supreme Court appeal comes with its own special math: Four of nine justices must agree to consider a case, but five are needed to issue an injunction or ruling.

Much remains uncertain. Experts caution that there are so many variables to how the courts could consider the issues involved in Trump’s appeal that it is difficult to make any predictions about how long it will all take.

“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,” said Stanley Brand, former House general counsel and now an attorney for several former Trump aides including Dan Scavino and Peter Navarro.

Brand, whose law partner is representing Trump’s co-defendant in the classified documents prosecution in Florida, Waltine Nauta, has spent years handling immunity issues in Washington. He put the chances of Trump’s trial occurring by March 4 at “50-50 or less” given the appellate process.

It’s December, “and unless there’s expedited consideration, it’s hard to see how you could have any consideration thoughtful enough to consider these novel issues in three months,” Brand said.

One critical factor will be which three appellate judges end up hearing the case. If judges can agree on how quickly they want to move forward, such panels can issue decisions in under two months. Other cases, however, can take more than a year.

Last week, in a separate ruling issued hours before Chutkan denied Trump’s bid to dismiss the criminal case, the D.C. appeals court denied Trump’s claims of immunity from a civil lawsuit over his conduct leading up to Jan. 6. That decision that took 20 months to reach.

“The D.C. Circuit can go really fast, I’ve learned that over 45 years of practice,” said Douglas N. Letter, who was House general counsel from 2018 to 2023 and before that was director of the Justice Department civil division’s appellate staff. “On the other hand, sometimes even when it rules in your favor it can wait 10 months to issue even a short opinion.”

The legal questions in Trump’s criminal case are different and broader than in the civil matter. The Supreme Court ruled in a case involving President Richard M. Nixon that presidents were immune from lawsuits over actions that fell within the “outer perimeter” of their official duties. But the high court has not addressed the scope of immunity for a president from criminal indictment.

Ruling in a precedent setting Watergate-era case, the Supreme Court took only two months in 1974 to uphold then-Chief U.S. District Judge John J. Sirica’s decision that Nixon’s White House tapes could be turned over in a criminal trial subpoena sought by prosecutors. That case, however, was of a more limited question than the Trump appeal. It involved whether a trial subpoena was valid in the case against a defendant close to the president, but not Nixon himself.

Still, the high court has shown it can rapidly settle - or duck - complex and controversial cases. It quickly let stand a D.C. Circuit decision turning over Trump’s White House communications records to the House Jan. 6 committee in 2022. And the justices took only one day after oral arguments to issue a ruling that shut down vote-counting in the 2000 election between George Bush and Al Gore.

“I could easily see the Supreme Court thinking, ‘We don’t want to get anywhere near this matter now; we’re going to deny review at this point and see what happens at trial,’” Letter said. After a trial, if Trump has been convicted and has not been reelected president, the court could take its time to issue a historic ruling on whether he should be immune from prosecution.

The bottom line is that both the D.C. Circuit Court of Appeals and the Supreme Court would have to act swiftly to allow Trump’s trial to go forward next year.

And the question for the courts may ultimately be to decide whether under America’s system of democracy, Trump should face accountability at the ballot box, or a jury box - or whether U.S. citizens should cast their votes in the 2024 election without knowing if he is criminally culpable for trying to overturn the results in 2020.