Legal experts “worried” DC appeal delay could mean Trump “losing that battle but winning the war”

Donald Trump Jim Vondruska/Getty Images
Donald Trump Jim Vondruska/Getty Images
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Legal observers are getting restless awaiting a D.C. Circuit Court of Appeals ruling on former President Donald Trump’s immunity claim in the D.C. election subversion case.

Proceedings in the case have been paused indefinitely for more than 50 days after Trump appealed U.S. District Judge Tanya Chutkan’s ruling rejecting his claim that presidential immunity protects him from prosecution for actions while in office.

A three-judge D.C. Circuit panel heard the appeal three weeks ago but has yet to issue a ruling. Any ruling is expected to be appealed to the Supreme Court.

Even if Trump’s immunity claim is rejected, “the protracted delays help the former president, whose strategy across his various trials has been to drag them out for as long as possible,” Politico’s Kyle Cheney and Josh Gerstein wrote. “Lengthy delays in his federal criminal cases create the possibility that, if he wins the presidency this November, Trump could avoid the charges altogether by having the Justice Department end the prosecutions or perhaps even by pardoning himself.”

Chutkan scheduled the trial for March 4 but suggested that the case is likely to be delayed in a recent order barring special counsel Jack Smith from filing substantive motions in the case until the appeal is resolved. If the D.C. Circuit and then the Supreme Court take additional weeks or months to deliver a final ruling, it could push Trump’s trial to the summer or fall, Politico reported, noting that at that point Trump and his allies would “exert intense pressure” to postpone the trial until after the election.

“The timing of a decision by the panel will indeed be a critical determinant of whether the case can go forward expeditiously,” Daniel Richman, a Columbia University law professor, told Politico.

Richman said Trump’s immunity claim is “outlandish” and is likely to be rejected but “quite a few stars would have to align before the trial can proceed.”

The delay has alarmed some legal experts.

Former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller’s team, wrote that he and his podcast co-host Mary McCord, a Georgetown law professor and former DOJ official, are “worried” that the D.C. immunity appeal “could result in Trump losing that battle but winning the war, by avoiding a trial before the election.”

MSNBC legal analyst Lisa Rubin suggested that there may be some disagreement among the three appellate judges about what to do with the case.

“My guess is these three judges have a general agreement between them that Donald Trump should not be immune from prosecution in the federal election interference case,” Rubin said Wednesday. “How they get there, on the other hand, is a different matter. And in the ideal world, all three of them would like to be in total agreement. They'd like to issue what's called a per curiam agreement, where all three of them get to sign on, but of course, there are many different paths to getting there."

Judge Karen Henderson, a George H.W. Bush appointee, expressed opposition to taking up the case on an expedited basis and suggested the case could be sent back to the trial court for more analysis of whether Trump’s actions could be considered official acts.

"One judge suggested during an argument that what really matters to her is the allegations against Trump are ones that affect his duties, or that affect him in the campaign capacity, and suggested almost that you really had to parse the indictment," Rubin explained. "That would be the worst of all worlds, because that can mean sending the case back to Judge Chutkan to determine which aspects of the indictment are worthy of immunity and which are not. And that could even further elongate case beyond the appellate process.

"So I think that's behind the scenes, the two judges would like to get there, in an easier way more akin to Judge Chutkan, are really putting some pressure on Judge Henderson to try to get on board and see if they could do something unanimously," she added.

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CNN legal analyst Elliott Williams, a former federal prosecutor, predicted that the judges are likely trying to reach a “unanimous decision.”

"Based on the oral argument they all seem to be in an agreement," Williams said. "They'll probably try to get a 3-0 opinion and that's bulletproof once that goes to the Supreme Court,” he added.