Various card games allow for the use of so-called “Wild Cards.” They seem to turn up in legal cases (both civil and criminal) with regularity. That’s why appeals courts stay so busy. And one has been dealt in the case Jack Smith is bringing against Donald Trump in DC. The legal question at issue has been mentioned in some of the news coverage I’ve read and heard but in my view not enough. Most of the talk has been about the merits, or lack thereof of Trump’s claim of “Presidential Immunity.” Pundits generally agree judge Chutkan’s original ruling Trump has none is legally sound and virtually airtight. So the consensus is that Trump will lose his appeal, even if it goes to SCOTUS and the only question is how long it will take for it all to play out and whether it will push back the start of Trump’s DC trial. Enter American Oversight who successfully introduced said Wild Card into all this: Standing! As in does Trump even have legal standing to file an appeal, at least at this time? If not then Trump is screwed.
If you’re like me you’ve been impatiently waiting for January 9 to come around on the calendar. (And then will count the days all over again waiting for their ruling) That date, next Tuesday is when the DC Court of Appeals will hear Trump’s appeal of District Court judge Tanya Chutkan’s ruling. The one that says Trump does not have what he calls Presidential Immunity from criminal prosecution. (It’s already been ruled he’s subject to civil prosecution)
The entire January 6 case against Trump is still scheduled to begin in March, but since Trump has appealed judge Chutkan has suspended pre-trial work pending the outcome of Trump’s appeal. That of course endangers the prospect of Trump’s DC trial starting on time, or at least pretty close to when it’s scheduled to begin. As a result Jack Smith went directly to SCOTUS since they will ultimately be asked (regardless of what the DC Circuit decides) to weigh in on the case. They begged off and said the process should play out via the DC Court of Appeals which already had the appeal pending on their docket. I’ve been arguing here on PZ that SCOTUS is hoping, even praying the DC Circuit will swiftly rule Trump has no immunity claim and that in turn they will decline to take up the case. That they will simply issue the stock one sentence statement “The petitioner’s request for a Writ of Certiorari is declined” and that will be that.
However, legal pundit and professor of law at UCLA Harry Littman has a short and compelling article in the LA Times highlighting why he believes the real issue the DC Court of appeals will hang their hat on is that Trump lacks legal standing, at least at this time to appeal! For reasons I’ll explain this is exactly the type of “gift horse” SCOTUS has been hoping and praying for. It’s a short article and I urge you to read it for yourself. Littman explains that American Oversight which is not a Party to the case filed a “friend of the court” brief which the appellate court accepted. In fact, they’ve notified both sides to address it during oral arguments next week which to this non-lawyer suggests they are taking it quite seriously. Littman goes on to explain why:
The Justice Department and Trump had been assuming the D.C. Circuit Court has jurisdiction based on Nixon vs. Fitzgerald, which established broad but not endless immunity from lawsuits over a president’s conduct while in office. But that civil case was not subject to the “utmost strictness” standard the Supreme Court has applied to criminal trials. It also predated the Midland Asphalt opinion, which the Justice Department somewhat bafflingly failed to mention.
However, the American Oversight brief effectively says a more recent case (referenced above) means Trump’s immunity appeal is jumping the gun so to speak. Premature. That there’s no legal standing for such an appeal unless and until Trump is convicted! Well, from where I sit that puts a whole different spin on things. In sports terms, it’s having what are clearly the two best teams all set to play for the championship. Everyone’s at the game site and ready to go. However there’s a system, a set of rules, a procedure that has to take place first. Playoffs. The two best teams must win their respective playoffs in their leagues/conferences before getting to square off for the championship. So, after all the hype at the championship venue an embarrassed Commissioner has to tell the teams and the fans “Sorry, but the whole thing has been called off. FIRST we have to have the playoffs so everyone has to wait.”
Littman, who if you read the link to his credentials knows his stuff writes he believes Trump’s immunity claim will fail on the merits but that American Oversight has made a compelling case that, unless and until Trump is convicted renders the issue moot. Their brief relies on a unanimous 1989 ruling by SCOTUS (authored by Justice Anton Scalia, a hero and mentor of both Alito and Thomas I might add) in Midland Asphalt v United States. Midland Asphalt was a criminal defendant and moved (unsuccessfully) to have the charges dismissed due to what they alleged was the prosecution’s violating grand jury rules. Midland lost and as I said the decision was unanimous:
The Supreme Court held that neither it nor the circuit court had the power to hear the case on “interlocutory appeal,” or before trial. As with the vast majority of issues that may arise at trial, the court ruled, this one could be considered only after a conviction.
The court emphasized that in criminal cases, the compelling interest in prompt trials demands that courts apply the interlocutory appeal doctrine “with utmost strictness.” Federal courts have jurisdiction over such appeals, the justices found, only if they are brought under a constitutional or statutory provision that expressly gives the defendant a right not to go to trial.
Littman goes on to explain the three categories that can be appealed prior to a conviction. He also explains why none of them seem to apply in this case. That takes us back to the point I raised early on which is that not only did the DC Circuit accept American Oversight’s brief, they’ve instructed both Jack Smith’s team and Team Trump to be ready to discuss it next Tuesday during oral arguments. I for one think that’s going to make for some interesting exchanges. Not to mention all sorts of legal commentary. However, I still go back to my belief SCOTUS wants no part of having to deal with this. Even if the DC Circuit issues and opinion that includes shooting down Trump’s appeal on the merits, if they base their ruling substantially on Midland then SCOTUS (and for that matter they too) have their “out.” Even conservatives on SCOTUS will, with no less than the their late “intellectual icon” Scalia having written the unanimous Midland opinion be able to say their hands are tied.
If someone like Harry Littman has been looking for holes in the position American Oversight has laid out and can’t find any, odds are good that come March we’ll see Trump’s fat orange ass sitting in judge Chutkan’s courtroom standing trial. Stay tuned.
It all depends on whether they care more about how history will.judge them or ideology. Do they want to be remembered the way the Justice who penned Dred Scott? Or are they more interested in shoving their religion (and these are Catholic League folks, like Cardinal.Burke) down everyone else’s throats.
I am waiting for some woman to.die because the hospital waited too long to perform a D&C, and her husband sues the hospital, the doctor, Great Abbott,,Ken Paxton,and every last damned GOP legislator. Or their equivalent in some state that bans abortion after 6 weeks with no exception for the life of the mother even if the fetus is nonviable. And I hope that husband owns every last dime and has a nice collection of balls in formaldehyde.