'Timing is everything': Here are Trump's options for appealing his immunity ruling

Trump faces a Monday deadline after a panel of judges denied his appeal.

February 11, 2024, 11:40 AM

Days after the U.S. Supreme Court heard arguments on Colorado's effort to disqualify Donald Trump from holding office, the former president faces another crossroads with the high court -- this one involving his effort to use presidential immunity to sidestep his federal election interference trial.

Trump faces a Monday deadline to request that the Supreme Court stay his criminal election interference case after a panel of three Circuit Court judges unanimously denied Trump's argument that a former president should be immune from criminal prosecution.

"We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter," the judges wrote in their decision Tuesday.

Calling the decision "nation-destroying," Trump vowed to appeal the ruling. His first step requires convincing five Supreme Court justices to continue the pause of his criminal case.

Trump's team could then consider whether to file a petition of certiorari -- requesting the Supreme Court consider the merits of his case -- or ask the entire D.C. Circuit to reconsider his case. The Supreme Court could alternatively consider Trump's application for a stay as a cert petition and further expedite the review.

If the Supreme Court denies Trump's request for a stay, the former president's case would likely resume, with the trial likely scheduled for the late spring.

"I think timing is everything here," said John Coffee, a professor at Columbia Law School. "A long delay for a Supreme Court argument means that there probably will not be a trial before the election" -- an outcome that Trump has been seeking from the start.

And even if the trial is pushed into the summer or early fall, that could trigger concerns about the trial impacting the election, which could run afoul of DOJ policy.

PHOTO: Former President and Republican presidential candidate Donald Trump delivers the keynote address at the National Rifle Association (NRA) Presidential Forum at the Pennsylvania Farm Show Complex & Expo Center, in Harrisburg, Pa., Feb. 9, 2024.
Former President and Republican presidential candidate Donald Trump delivers the keynote address at the National Rifle Association (NRA) Presidential Forum at the Pennsylvania Farm Show Complex & Expo Center, in Harrisburg, Pa., Feb. 9, 2024.
Leah Millis/Reuters

Trump in August pleaded not guilty to charges of undertaking a "criminal scheme" to overturn the results of the 2020 election. The resulting legal fight is playing out as he also faces charges in his classified documents case, his Georgia election interference case, and his New York hush money case. He has pleaded not guilty in all cases.

"It is a strategic decision about him just wanting to delay every single case as much as he can so the election comes closer and closer," said criminal and constitutional lawyer Bob McWhirter.

Here are the paths Trump could take to further his appeal in the federal election case.

Trump asks the DC Circuit to reconsider

While Trump's path to an appeal likely runs through the Supreme Court, the former president has the option of asking the full D.C. Circuit to reconsider the case in what is known as an "en banc" hearing.

However, Tuesday's order from the three-judge circuit panel explicitly noted that Trump would need to go to the Supreme Court first to request a stay of the proceeding; if not, the circuit court would hand the reins back to Judge Tanya Chutkan to continue proceedings in the case.

"The court basically said, if you want to keep delaying, you're going to have to go right to the Supreme Court, and hope that they will grant a stay while they consider an application of whether to take the case," said Doni Gewirtzman, a professor at New York Law School.

If the Supreme Court grants a stay, Trump could then return to the D.C. Circuit Court to reargue the case before the entire court, further drawing out the timeline of the appeal.

Supreme Court declines to consider the case

If the Supreme Court grants a stay, Trump's team could return to the high court to request they hear the case on the merits. However, the court might decline to even consider Trump's case based on the strength of the decision from the DC Circuit Court.

"The panel was unequivocal in its statement and it was also ideologically diverse. You had judges nominated by both Republicans and Democrats agreeing on this point," Gewirtzman said.

If the Supreme Court denies Trump's request, Judge Chutkan could resume proceedings in the case, which was initially scheduled to begin on March 4. With that date off the court's calendar and the proceedings delayed for months, Chutkan would likely give the parties roughly two months to prepare for the trial, according to NYU Law Professor Richard Pildes.

Supreme Court takes up the case

Similar to the Supreme Court's expedited schedule to hear the Colorado disqualification case, the high court could opt to speedily hear the case, possibly still allowing a trial. An expedited timeline could give the parties about three weeks to issue their briefs and reply, with a decision issued in April and trial in May or June, according to Coffee.

"If they were to expedite, this trial could be over before September," Coffee said.

A longer timeline could push the trial later into the summer or the fall, not only overlapping with Trump's other trials but also approaching the 2024 presidential election. The Justice Department's manual -- which applies to special counsels -- includes guidance discouraging prosecutors from selecting the timing of their actions in a manner that could give an advantage to a particular party.

"If we're on the longer timeframe ... is the end state of that process going to start bumping up against the Justice Department's guidelines that we really shouldn't be pursuing the litigation at that point?" Pildes said.

Pildes and Coffee expressed uncertainty about how those guidelines -- which mainly concern investigative steps, charges, and statements -- would impact the special counsel's case, which was charged more than six months ago.

But they agreed that if the trial stretches past November and Trump wins the election, its outcome might become irrelevant for the future commander-in-chief.

"If there's a conviction in December, it's a matter of days until Trump can have his new Justice Department if he wins, and seek to dismiss the prosecution," Coffee said.

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