What next?

A three-judge panel of the D.C. Circuit Court of Appeals rejected President Trump’s claim of absolute immunity from election-related criminal charges deriving from official acts taken as president. The panel’s ruling comes in a 57-page per curiam (i.e., unsigned and unanimous) opinion yesterday. The court’s opinion is posted online here. After a slog through precedent, the court holds: “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”

The court takes up the forms of immunity that apply to the three branches of government at pages 18-30. The opinion gets down to analysis of the issue in terms of the specific charges against Trump at pages 37-41.

Trump had a right to appeal the issue of immunity before trial. That is why the D.C. Circuit addressed it at this time.

We can anticipate that Trump will petition the the entire D.C. Circuit to rehear the immunity case (i.e., rehear it en banc) and/or for the Supreme Court to review the panel opinion by certiorari. Whether the D.C. Circuit or the Supreme Court takes up the case now is purely discretionary. By separate order the panel has put Trump on an expedited schedule (i.e, a deadline of February 12) to seek Supreme Court review that would stay its mandate (i.e., the return of the case to Judge Chutkan). The order precludes the case from being stayed by a petition for rehearing. Only the filing of a petition for certiorari by next Monday will do that.

The Supreme Court has no obligation to take up the case now or later. The affirmative vote of four justices is required to bring the case before the Court. The Court could avoid dealing with the issue at all or defer dealing with the issue until after a conviction. In the meantime the case marches on. In the event Trump were to be acquitted at trial, the immunity issue would be moot, but one of the the points of immunity is to spare the beneficiary of immunity the ordeal of trial.

If the Supreme Court denies review, the underlying criminal case brought by Krazy-Eyez Killa Jack Smith will return to Judge Chutkan. Assuming no scheduling conflicts with the other cases pending against Trump prevent it, Judge Chutkan apparently means to get this case tried following Trump’s nomination at the Republican convention to be held next July in Milwaukee. A trial at that time would give new meaning to the term “election interference.”

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