As judges mull presidential immunity, Trump reaps the benefits of delay

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At a time when every day is important, the fate of whether or not Donald Trump will be sentenced to prison in 2024 is in the hands of a federal appeals court that operates according to its own schedule.

It has been more than fifty days since the criminal proceedings against Donald Trump in a trial court in Washington, District of Columbia, which were halted indefinitely on charges of attempting to undermine the 2020 election, were allowed to continue. However, they will not resume until the question that has been hovering over the entire case, which is whether or not Trump, as a former president, is exempt from criminal prosecution, is resolved by the District of Columbia Circuit Court of Appeals and, most likely, the Supreme Court.

The prolonged delays are beneficial to the former president, whose tactic throughout his many trials has been to stretch them out for as long as possible. This is the case even if the courts ultimately decide to reject Trump’s arguments regarding his immunity, which is the decision that the majority of legal experts anticipate.

As judges mull presidential immunity, Trump reaps the benefits of delay
As judges mull presidential immunity, Trump reaps the benefits of delay

The lengthy delays that have occurred in his federal criminal cases have created the prospect that, in the event that he is elected president in November of this year, he might completely avoid the charges by requesting that the Justice Department terminate the prosecutions or even by pardoning himself.

Tanya Chutkan, the United States District Judge who is in charge of the federal election case involving Donald Trump, has made efforts to ensure that the proceeding moves along as quickly as possible, and the trial is scheduled to start on March 4th. Chutkan, on the other hand, has made it very clear that she intends to push back that start date in order to compensate for each day of delay that is brought about by Trump’s plea for immunity.

In the event that the appeal against Trump were to be resolved this week, according to that estimate, the earliest possible trial date for him would be in late April. However, if the District of Columbia Circuit Court of Appeals and the Supreme Court require additional weeks or months to deliver a final verdict, the opening days of Trump’s trial might be moved to the summer or fall.

It is almost probable that Trump and his allies will exert a great deal of pressure to postpone the trial until after the election if, at that point, Trump continues to maintain his hold on the candidacy for the Republican presidential nomination in 2024. As an Obama appointment, Chutkan has the ability to move forward with a trial regardless, and she has frequently maintained that the campaign calendar does not have any influence on her own.

As judges mull presidential immunity, Trump reaps the benefits of delay
As judges mull presidential immunity, Trump reaps the benefits of delay

But in order to do so, Trump would have to remain seated in a courtroom for several weeks throughout the most crucial part of the campaign. By saying that he is the target of political prosecutions and lawsuits, Trump has already exploited his packed legal calendar as a campaign cudgel to generate donations and mobilize supporters. He has done this by alleging that he is the victim of this.

However, for the time being, the scheduling of the case is still up to a panel of three judges from the District of Columbia Circuit Court of Appeals, which heard arguments on the immunity issue on January 8th. Because of this reality, huge amounts of authority have been concentrated in the hands of a small number of judges who are directed by opaque internal procedures, seniority, and norms of collegiality, all of which make it impossible to make accurate predictions.

A great number of legal professionals had anticipated that the panel of the District of Columbia Circuit Court of Appeals would issue a decision shortly after the arguments, possibly within a few days. Nevertheless, the court has not spoken for more than three weeks at this point. There is no mandatory timeline for a decision to be made.

The timing of a ruling by the panel would, in fact, be a major determinant of whether or not the case may proceed in a timely manner, according to Daniel Richman, a law professor at Columbia University.

According to Richman, the arguments that Trump provided in support of his claim for immunity were so “outlandish” that the appeals court ought to have little issue dismissing them. However, he stated that the court must take its time in order to deliver a verdict that is taken into consideration because it is inevitable that Trump would continue to press his immunity claim.

As judges mull presidential immunity, Trump reaps the benefits of delay
As judges mull presidential immunity, Trump reaps the benefits of delay

According to Richman, “quite a few stars would need to align before the trial can proceed on its current trajectory.”

The timing will be extremely important if the stars were to align. Jack Smith, the special counsel, has estimated that it would take roughly two months to deliver his case, and it is almost inevitable that Trump will give a defense, which may add extra weeks to the timeframe. Because of this, there is a greater possibility that Trump will be obliged to remain in a courtroom for the entirety of the Republican National Convention, or perhaps on Election Day itself.

It is also possible that the trial will be postponed until after the election if the Supreme Court decides to consider Trump’s request for immunity but does not take up his appeal on an emergency basis. And if Trump were to win, it would be almost clear that he would put an end to the investigation.

The panel of three judges from the District of Columbia Circuit Court of Appeals initially gave the impression that it was moving quickly. It took up the matter on an emergency basis in December and had oral arguments a few weeks later, which is a lightning-quick pace for the court that is generally slow to move.

During that time period, it appeared as though the judges were going to dismiss Trump’s broad immunity claim. The specific outlines of their decision, on the other hand, were less evident, and it is feasible that the judges could find themselves in disagreement over the details, which would further postpone the decision.

As judges mull presidential immunity, Trump reaps the benefits of delay
As judges mull presidential immunity, Trump reaps the benefits of delay

Because of the pressing need to issue a ruling to the prosecution, the internal workings of the appeals court have been subjected to an unusual level of scrutiny. One of the questions that has been raised is whether a single judge, possibly Karen Henderson, who was appointed by President George H.W. Bush, could prevent the ruling from being issued in a timely manner. This is the case even if the other two judges on the panel, Florence Pan and Michelle Childs, who were appointed by President Joe Biden, are prepared to issue a decision.

Henderson, who was the senior judge on the panel, had already voiced her aversion to the idea of taking up the case on an accelerated basis. Furthermore, based on the questions she asked during oral arguments, she had the most cryptic outlook. Due to the fact that she is the most senior judge, she is authorized to compose the opinion of the majority if she is in the majority. It is possible that she will delay the decision of the court for several weeks or months while she formulates a dissenting opinion, even if she is in disagreement with the other members of the court at the time.


According to Matthew Seligman, a former law clerk for the District of Columbia Circuit Court of Appeals who is co-counsel on a friend-of-the-court brief in the case filed by former Republican officials opposing Trump’s immunity claim, there is no formal rule or policy at the appeals court that allows the majority on a panel to force the release of a ruling when another member of the panel has not yet completed his or her opinion.

“At this point, it’s uncomfortable how long it’s taken, but I don’t think you can look at it and say it’s, on its face, absurd,” said Seligman, who added judges in the majority will likely wait much longer before trying to coax or force the issuance of a verdict while a colleague is still writing. “I do not believe that we are really close to a point where the judges who are in the majority would consider taking whatever measures they could, and it is not clear what those measures are,” I said.

In addition, the length of time that the appeals court takes to deliberate on the weighty subject may have an impact on the subsequent battle that will most likely be heard by the Supreme Court. A public effort to get the Supreme Court to support an unlimited definition of presidential immunity has been launched by President Trump, who has already declared his intention to seek the judgment of the Supreme Court in the event that he is unsuccessful in his appeals court case. If the appeals court takes a longer amount of time to make a decision, the Supreme Court is more likely to postpone the case until the fall, which would practically exclude the possibility of a trial taking place before the election.

Consequently, the timeliness of the ruling of the District of Columbia Circuit could have a significant impact on whether or not Trump faces a criminal trial that involves the possibility of jail time in the year 2024.

Trump is currently facing three additional criminal cases: one brought by Smith in Florida, in which Trump is accused of hoarding national security secrets at his Mar-a-Lago estate after leaving office; one brought by local prosecutors in Georgia, who say Trump conspired to subvert the presidential election there in 2020; and one brought by the Manhattan district attorney, who claims that Trump falsified his company’s records to conceal hush money payments he made to conceal an alleged affair with a porn star. All of these cases are currently being brought against Trump.

On the other hand, Trump is still fighting to throw out the entire case, and even if it does move forward, the anticipated punishment is believed to be minor. The trial in the New York case is formally scheduled to begin in late March. The Georgia case has not yet been scheduled, but it is highly likely that it will be postponed until 2025 due to the high level of complexity and extensive list of issues that have not been resolved. Additionally, the lawsuit involving secret materials in Florida, which was scheduled to take place on May 20, appears to be pushed back as a result of the extension of important pretrial dates by U.S. District Judge Aileen Cannon, who was appointed by President Trump.

On December 7, Trump filed an appeal against Chutkan’s determination that neither he nor any other previous president is immune from criminal prosecution. This decision caused the proceedings in the election-focused lawsuit in Washington to come to a halt. And Chutkan has recognized that as long as the immunity matter remains unresolved, Trump is under no responsibility to continue preparing for trial.

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