DC Circuit Sets Expedited Briefing Schedule in Trump Immunity Appeal - Will It Matter?

As RedState reported yesterday, there was a flurry of activity surrounding former President Donald Trump's federal election interference case.

First, the Supreme Court agreed to hear the appeal of a January 6th defendant (Joseph Fischer) regarding the use of 18 U.S.C. Section 1512(c) to charge protesters with "corruptly obstructing an official proceeding." The issue there is whether the statutory provision enacted in 2002 as part of the Sarbanes-Oxley Act in the wake of the Enron scandal has been applied too broadly by the Department of Justice (DOJ) as to the J6 defendants. And if the court ultimately rules that it does, that could knock out two of the four pending charges against Trump in his D.C. case as well.

Then, Wednesday afternoon, Judge Tanya Chutkan, who's presiding over Trump's D.C. case, issued an order staying that case pending the appeal of her order denying Trump's Motion to Dismiss on the basis of presidential immunity. After Chutkan denied the motion on December 1, Trump appealed the ruling to the D.C. Circuit Court. But then, Special Prosecutor Jack Smith made the somewhat unusual move of seeking immediate review by the Supreme Court, essentially leapfrogging the Circuit Court of Appeals.

As Shipwreckedcrew explained, while Chutkan's stay order technically held onto the March 4 trial setting and other pretrial deadlines, the practical effect of these developments is that the likelihood of the D.C. case proceeding to trial in March is virtually nill. While Smith, with his maneuver, may seek to have the immunity appeal expedited with the Supreme Court, the Fischer appeal on the obstruction issue, which is set to proceed at normal pace — meaning a ruling on the issue won't come down until sometime in the spring — makes expediting the immunity appeal (assuming the Supreme Court ultimately agrees to hear the issue, which seems likely at this point) unnecessary.

Just to make things interesting, however, as Ship also noted, the initial Trump appeal of Chutkan's order on the immunity issue remains pending in the D.C. Circuit Court of Appeals, which also on Wednesday issued an extraordinarily speedy briefing schedule.

JUST IN: DC Circuit sets expedited schedule for Trump appeal on denied presidential immunity claim in his DC election-subversion prosecution. 1st brief Dec. 23, last Jan. 2. No promise of oral argument. Henderson/Childs/Pan. #SCOTUS could upend it all. Doc https://t.co/EJCW8Lt57a
— Josh Gerstein (@joshgerstein) December 14, 2023

Under that schedule, Trump's brief is due December 23 (so, in 10 days from the order), Smith's response is due a week later, on December 30, and Trump's reply to that is due three days later, on January 2. That's like warp speed in the appellate world, particularly in the middle of the holidays, as Leslie McAdoo Gordon explains here:

This is an absurdly fast schedule for a case that is not an actual emergency, esp over a holiday period. Makes me wonder if the panel thinks SCOTUS is going to jump them so it really doesn’t matter. And in reality the Circuit’s decision doesn’t matter. SCOTUS will decide de novo. https://t.co/WqVeSWA259
— Leslie McAdoo Gordon 🇺🇸 (@McAdooGordon) December 14, 2023

Now, here's the big question: Does the Trump team take a gamble that the Supreme Court will agree to hear the immunity issue and join Smith's Request for Certiorari Before Judgment, thereby taking the case out of the Circuit Court of Appeals? Or do they go ahead and take their chances with the D.C. Circuit and oppose Smith's request? In the end, as Leslie rightly notes, it may not matter. Either way, we'll find out soon enough.