The Lawfare Podcast: Presidential Immunity at the DC Circuit

[Introduction]

R. Stanton Jones: There are dozens, maybe hundreds of court of appeals decisions over the last several decades dismissing interlocutory appeals where criminal defendants have raised all manner of arguments and claimed immunities. Maybe if the D.C. Circuit dismisses this interlocutory appeal for lack of jurisdiction and former President Trump asks the Supreme Court to review that determination, it certainly seems like it would be an easy out for them to deny cert in a case where the D.C. Circuit has simply found no interlocutory jurisdiction.

Anna Bower: I'm Anna Bower, Legal Fellow and Courts Correspondent, and this is the Lawfare Podcast, January 8th, 2024 edition. On Tuesday, January 9, the D.C. Circuit Court of Appeals is set to hear oral argument in United States v. Trump. Trump, indicted in D.C. for alleged crimes related to election interference, is appealing the trial court's denial of his motion to dismiss based on presidential immunity and constitutional grounds. Ahead of the hearing, we gathered in the virtual jungle studio with an all-star team to discuss the merits of Trump's appeal and how the D.C. Circuit might rule.

Lawfare Editor-in-Chief Ben Wittes and Senior Editor Quinta Jurecic were joined by Stanton Jones, counsel for American Oversight, which has filed a fascinating amicus brief that questions whether the appeals court has jurisdiction to decide the case in the first place. We were also joined by Matthew Seligman, counsel for a group of former Republican officials who have filed an amicus brief in opposition to Trump's claim of immunity. Matthew is also the co-author of a forthcoming book on presidential elections called “How to Steal an Election.”

It's the Lawfare Podcast, January 8: Presidential Immunity at the D.C. Circuit.

[Main Podcast]

Quinta, I'm coming to you to start us off. Give us a high-level summary of what's happening at the D.C. Circuit on Tuesday and how we got here.

Quinta Jurecic: Yeah, so it's busy days at the D.C. Circuit. On Tuesday, January 9, we're expecting oral argument on an appeal filed by Trump of the ruling by U.S. District Judge Tanya Chutkan finding that he does not have absolute immunity as a former president for actions that he took during his presidency.

Trump is arguing that he does have that immunity and that the immunity importantly protects him specifically from the charges filed by Special Counsel Jack Smith in the January 6 case. Smith will be arguing, as he set out in his brief, that there is no such thing as this kind of absolute criminal immunity but also, even if there is some kind of immunity in some cases, that it doesn't extend to the particular actions that Trump is alleged to have taken here, which are, in Smith's view, outside the scope of the president's official acts.

We also have a fun little fly in the ointment, a jurisdictional question, every lawyer's favorite thing, that kind of popped up toward the end of the briefing, raised by American Oversight, and we'll be hearing more about that, about whether or not the appeals court even has jurisdiction to hear this in the first place.

Trump had, had argued and Smith had conceded that even though usually you don't get to appeal matters like this before it's hashed out in the district court, that because this was a question that had to do with Trump's immunity from criminal process, that it was subject to interlocutory appeal, that it could be heard before the trial gets started.

Now there's a question about whether or not that's the case, and the appeals court seems interested in that issue, so we'll see what they do. I should also say just 2, sort of, procedural things to note. The case in the district court has been stayed while this is being hashed out, so everything is kind of on hold right now.

That's particularly important to note because originally the trial was scheduled to begin on March 4. I think it's probably fair to say at this point that that we're not going to meet that date even though the D.C. Circuit is handling this pretty quickly. And the other thing to note is also that after Trump appealed Judge Chutkan's decision, Special Counsel Smith filed a petition for certiorari before judgment to the Supreme Court trying to kind of skip over the D.C. Circuit and get the Supreme Court to just weigh in right away. The Supreme Court denied that petition, essentially meaning that we're going to hear this out in the appeals court, first of all. But that's important to note because if we do get a ruling in the D.C. Circuit against Trump, he may well attempt to petition for certiorari to the Supreme Court, and we may end up with back there again.

So that, that's a lot that I just set out. I focused a little bit more on the procedure and the kind of mechanics than the merits, but I think that's a good way to get the lay of the land.

Anna Bower: It is a good way to get a lay of the land. Well, let's go a little bit deeper on the, the merits questions. Ben, why don't you take us into the legal arguments that Trump makes in his brief? What are the arguments that we expect to hear from him on Tuesday before the D.C. Circuit court?

Benjamin Wittes: Right, so there's really two broad arguments and he kind of conflates them a little bit. The first is that there is an absolute immunity for presidents in their official acts that tracks the immunity that the courts have recognized, the Supreme Court recognized in Nixon v. Fitzgerald in the civil context. So, that is that if an act is understandably as within the outer perimeter of the presidential function the president is in fact immune civilly for liability for, for that act. And Trump argues, number 2, immune criminally. That is not a recognized immunity, but it is the one that he asserts.

The second argument that he makes is that there is a double jeopardy problem with his prosecution because he was tried and acquitted of closely related conduct in the context of his impeachment. And of course, the impeachment judgment clause says that you can be that the person tried and convicted in a, in an impeachment is amenable to trial in criminal process after he leaves office. And Trump reads a kind of negative inference in that and from that and says therefore trial and conviction in impeachment is the only condition in which a president is triable. He was acquitted and therefore he cannot be retried now.

Finally, there's a, a third component of this argument, which is not, it's not actually an argument, but it's a methodological component that is so central to his argument that it's worth articulating explicitly, which is to read the facts alleged in the indictment at such a high level of abstraction that they fit within the four corners of the presidential function.

So, for example, when Donald Trump is alleged to have threatened Brad Raffensperger, Trump describes that in his briefs as, you know, talking to state officials and advocating things, right? And so there's a, you know, there's a an effort in this litigation both at the district court level and here to read the activities in a highly, highly stylized and formalized way rather than in any way that the prosecutors in the case would acknowledge as reflecting the facts of the indictment.

And so there is a, a deep dispute between both at the district court level and, and at the appellate court level as to whether Trump is accurately describing the facts of the indictment in a fashion that then that has very big implications for even if you applied immunity, an absolute immunity, whether it would apply to this situation and to the facts as, as Jack Smith alleges them.

Anna Bower: Right and of course, Jack Smith and the special counsel's office disagree with Trump and, and have replied in, in their briefing as such. But there's also a number of parties who have amicus briefs in the case. That's, for those who don't know it, an amicus brief is also known as a friend of the court brief.

It's a brief that's filed by a non-party and an appellate court has discretion to accept such briefs and kind of use them in understanding the case. In this case, it certainly seems that the appellate court is, has very much taken notice of some of these amicus briefs. Matthew, you co-authored one of the friend of the court briefs on behalf of a group of former Republican officials, including people like George Conway and former White House lawyer Ty Cobb.

And those arguments track back to pretty closely with the arguments that the special counsel's office has made in reply to Trump's immunity appeal. So why don't you walk us through what the arguments on the merits are that cut against Trump's claims.

Matthew Seligman: Thanks for having me on. The merits arguments about whether former President Trump is immune from criminal prosecution start with the text of the Constitution. There is, as the district court said, no presidential immunity clause in the Constitution. And that's important, especially because there is an explicit immunity created for members of Congress, which is known as the Speech or Debate Clause. The Speech or Debate Clause says that for any speech or debate in either house, members of Congress shall not be questioning it in any other place.

And so this immunizes them from criminal prosecution or from civil liability for anything that they do in their capacity as a member of Congress on the floor of Congress and closely associated conduct. And so it's notable that the framers of the Constitution knew how to create these types of immunities and explicitly chose not to do so in contrast with members of Congress.

And that tracks our historical understanding of what was happening at the founding. We were overthrowing a monarchy. And when doing so, it would be odd if the members of the Constitutional Convention in 1787 decided to immunize the chief executive from accountability through the criminal law. And there's just no basis in the text of the Constitution to suggest otherwise.

Now, President Trump has tried to argue that there is a textual basis by, as Ben mentioned, trying to draw this negative implication from the impeachment judgment clause. The impeachment judgment clause says that even if a civil officer is impeached and convicted, nonetheless, they can be liable and subject to indictment, trial, and judgment, and punishment according to law, which says if you're impeached and convicted, you can still be criminally prosecuted.

And we do have some experience with something that edged close to that situation in American history, and that's President Nixon. He was famously pardoned by the new President Ford for all crimes, even though he was going to be impeached and probably convicted by the Senate. And so there's really no reason to believe that the impeachment judgment clause has this atextual negative implication that if you're impeached and convicted, then you can be criminally prosecuted, but, without saying so in the text, if you're impeached but not convicted by the Senate, that you can't be criminally prosecuted.

There's just no basis for that. So the text and structure of the Constitution is pretty clear, I think, that there is no presidential immunity. Now, beyond that, and beyond the history where presidents have been thought of as subject to federal criminal prosecution, it's just mind boggling to think that there is one and only one person, indeed the most powerful person in American government, who has vast powers to do pretty much whatever he wants in the modern imperial presidency, is completely immune from criminal prosecution. And that's something that's a stunning assertion of power. And I don't think comports with our constitutional design at all.

Anna Bower: Thanks for that, Matthew. And there's also this argument that, you know, even if there is some kind of recognition of presidential immunity, it wouldn't apply to Trump's conduct in this case anyway. So can you walk us through that argument a little bit as well?

Matthew Seligman: Absolutely. And this is really important for a couple of reasons. And the first reason why it's important is it helps us to understand the issue that's actually on appeal here. Nobody is arguing, not even President Trump, that he is immune from criminal prosecution for acts that are outside the outer perimeter of his official responsibilities as president. So he famously said that, you know, if he walked in the middle of 5th Avenue and shot a person dead, he wouldn't lose any voters. That may well be true, but he would be subject to criminal prosecution. And the reason is because shooting someone in the middle of Fifth Avenue is not within the outer perimeter of his official responsibilities.

So this has important implications for the case going forward. One of which is that even if President Trump wins on the, this issue in the Supreme Court, that he is, he is immune from criminal prosecution for official acts, the trial goes on. And the reason is because there's still this question about whether the conduct alleged in the indictment falls within the outer perimeter of his official responsibilities. And there's really good reason to think that it doesn't because the president has no role in any of the, let's say election dispute resolution that President Trump claimed that he was engaged in. There's no role for the president to exert pressure on state officials to try to interfere with election results. There's no role for the president in the counting of electoral votes on January 6th. The Constitution is quite clear that Congress has that authority and that states run elections. And so the president just doesn't have any role there.

And so it's difficult to see how this conduct could be part of his official acts, as opposed to his acts as a candidate, that he was, he was electioneering. He was trying to pressure members of Congress in his capacity as a candidate. He was trying to persuade state election officials to do something in his capacity as a candidate. And if that's right, then it actually doesn't matter whether he's immune from criminal prosecution for his official acts, because these weren't official acts, and it's undisputed that anything that falls out that outside parameter is subject to federal criminal prosecution.

Anna Bower: And in terms of applying immunity to Trump's conduct, the special counsel's brief specifically points to this other case that's been decided in the D.C. Circuit Court of Appeals called Blassingame. Quinta, what's the significance of that and why might that case actually make it harder for Trump to prevail here?

Quinta Jurecic: The Blassingame case is a civil suit against Trump for his actions on January 6th, and what happened is that in late 2023, the D.C. Circuit ruled that the existing immunity that exists protecting presidents and former presidents from civil suit for actions within the outer perimeter of their presidential duties while they were in office did not extend to Trump's actions on that day, particularly focusing on his speech on the ellipse on January 6th.

And what's important about this is that the D.C. Circuit, in a decision by Chief Judge Sri Srinivasan, which was importantly joined also by Judge Gregory Katsas, who's a Trump appointee, ruled that we can kind of draw a distinction between official presidential conduct and conduct that has to do with the president's efforts to secure reelection. And in that instance, Srinivasan writes, the president is acting in a private and unofficial capacity. And the D.C. Circuit essentially says, in that January 6 speech, he's acting as a candidate. He's not acting in an official role. Now, the, the D.C. Circuit is very careful to note in that Blassingame ruling, we're talking only about the civil context, we're not talking about the criminal context.

But as Ben and I have written previously, it does kind of set out a framework for how we might expect the D.C. Circuit to think about this issue of, sort of, evaluating what might and might not be within bounds in terms of any kind of criminal immunity. And so I think it's notable that in his brief, Special Counsel Jack Smith points explicitly to Blassingame and says, look, you know, even if there is some level of immunity from criminal prosecution for presidents in some instances, we don't have that here because these actions, as, as we've just been discussing, are so far outside that. And look, we can point to this distinction that the D.C. Circuit draws in Blassingame, saying that the president's conduct is outside the outer perimeter of his official duties under Nixon v. Fitzgerald, if, if those actions are within the scope of a reelection effort. Those are the actions of a candidate for office, not of the presidency itself.

And so I think that Smith clearly is, is noting the significance of the Blassingame ruling. Judge Chutkan in her ruling below also pointed to, to Blassingame very briefly, given that the ruling only came out a few hours before she ruled. But I think we could certainly expect that Blassingame is going to play a role perhaps during oral argument and in the D.C. Circuit's ruling on this issue.

Benjamin Wittes: Yeah, I would just add to that that though Jack Smith has some very good arguments here the indictment, it alleges a bunch of facts that are clearly in Trump's presidential role as well. For example, trying to decide whether to fire the acting Attorney General and replace him with a toady in the Justice Department is, you know, one of the most corrupt set of discussions in the entire indictment, but it's clearly about an actual presidential function, you know. So, so this is I think a good third argument for, for Jack Smith, but it's not the grounds he wants to be fighting on.

Anna Bower: All right, so another argument that it has been really fascinating to engage with is an is an argument that is made in an amicus brief by American Oversight, and as Quinta teed it up for us, it's a jurisdictional question that is raised there.

So in other words it questions whether the appeals court can, can hear the case at this stage at all, and Stanton Jones, you co-authored that brief. Why don't you walk us through what the argument is there? And, and, you know, what exactly it is that you guys are saying in that brief?

R. Stanton Jones: Yeah. Thank you for having me. It's a pleasure to be here The argument is simple, it's that as interesting, important, and weighty as these immunity questions are, the D.C. Circuit can't hear them yet because the case isn't over. All lawyers learn in their 1L, first year civil procedure class something called the final judgment rule. And the final judgment rule means that you typically can't appeal to a higher court until there has been a final judgment. In a criminal case like this one, a final judgment means conviction and sentence. So in criminal cases, a criminal defendant typically cannot take any appeal until after they have been convicted and received their criminal sentence. Now, there is an exception to the final judgment rule that the Supreme Court first recognized in a case called Cohen in the 1940s.

The Rule, the exception is called the collateral order doctrine. It allows defendants in both civil and criminal cases in some circumstances to appeal before a final judgment if they want to raise an issue that is collateral to the merits of the case and would be effectively unreviewable if they were forced to wait until after a final judgment to appeal. But critically important here, the Supreme Court in 1989, in a unanimous decision written by Justice Scalia, a case called Midland Asphalt, the Supreme Court held that this collateral order doctrine, this exception to the ordinary final judgment rule, must be applied with the utmost strictness in criminal cases. And that's because delay is particularly harmful in the criminal context because it can allow evidence to go stale, and more generally, it frustrates the community's interest in seeing criminal offenders brought to justice swiftly. And the Supreme Court said in that case that a criminal defendant cannot take an early appeal, cannot appeal before a final judgment unless their claim to an immunity or a right to avoid trial rests upon an explicit statutory or constitutional guarantee that trial will not occur. That was Justice Scalia's directive that these interlocutory pretrial appeals will not be allowed in criminal cases unless the defendant can point to an explicit textual guarantee against trial. And since 1989, so for decades, the courts of appeals have routinely applied this standard or rule from the Midland Asphalt case to dismiss interlocutory appeals for lack of jurisdiction when criminal defendants raise all manner of different types of arguments, including lots of different types of immunities.

Interlocutory appeals have been dismissed for lack of jurisdiction under the Midland Asphalt rule when criminal defendants were invoking judicial immunity, transactional immunity, or even immunity arising under the structural, the Constitution structural separation of powers, not dissimilar from some of the types of arguments that former President Trump is making here. And so the argument in our American Oversight amicus brief is that the D.C. Circuit should apply the rule of Midland Asphalt, the case has never been overruled. I think former President Trump in his most recent reply brief in the D.C. Circuit, even acknowledges that Midland Asphalt applies here because this is a criminal case and that his appeal is premature unless he can point to an explicit constitutional guarantee against trial.

And the bottom line is he can't, as was referenced earlier. There is no presidential immunity clause in the Constitution. His argument for presidential immunity rests on a hodgepodge of factors like history, tradition, the structural separation of powers. None of them is a textual text-based argument that some specific provision of the Constitution actually provides this immunity.

He also points to the impeachment judgment clause, but as was also discussed earlier, his argument there is that the impeachment judgment clause creates a negative implication, a negative inference that supports his claim to immunity here. But of course, a negative inference is not, is, is the opposite of an explicit guarantee against trial. The word negative and negative inference refers to what the clause does not say. And an argument like that simply doesn't meet the Midland Asphalt standard that was adopted by the court unanimously in this opinion by Justice Scalia in 1989. And so the D.C. Circuit seems to have indicated that it, it will have questions for the parties about this issue at the oral argument next week.

Anna Bower: Right. The, the D.C. Circuit noticed an order earlier this week that said, you know, the party should be ready to address any discreet issues that were raised in the amicus briefs. And that certainly seems to maybe be a nod to the jurisdictional argument that you've made. Because it's not an argument that Jack Smith and the special counsel's office made in their brief, and I'm curious to hear what you make of that, because when you look at the statement of jurisdiction in Jack Smith's brief, the special counsel seems to concede that the circuit court does have jurisdiction to decide this issue on the merits.

What exactly do you make of that? And why do you think the special counsel's office didn't make a similar jurisdictional argument that American Oversight did in its brief?

R. Stanton Jones: Well, I'm tempted to say that the special counsel's original failure to raise the jurisdictional issue may have been itself an American oversight, but that would be both a terrible pun and I think not accurate. My best guess is that the special counsel and, and his team, legal team, which includes, you know, some of the best lawyers in the country believe that the, the appellate courts do have jurisdiction here, or at least are making a predictive judgment that if presented with this issue, the Supreme Court might depart from existing law to find that there is jurisdiction.

Our perspective for American Oversight is different. It's that the, we take the case law as we find it. And Midland Asphalt being a unanimous decision of the Supreme Court that has never been overruled certainly needs to be applied by the D.C. Circuit. So, you know, I, I think that they, the special counsel's team just has a, has a different view of that question.

Matthew Seligman: And I'll jump in here as well to, to try to unpack some of the strategic, really interesting and challenging strategic questions that come along with this jurisdictional issue. I think that the American Oversight brief does an excellent job of, of presenting that jurisdictional argument. And I think that if we're applying Midland Asphalt, you know, sort of straight as you would just in an ordinary case, trying to get to the best view of the law, I think it's the American Oversight brief is probably correct.

And so the question then is why the very smart lawyers in the special counsel's office didn't make that argument. And so one possibility is to echo the, the truly wonderful pun, it may be an American oversight, or it could be the result of a strategic calculation. And the strategic calculation that, to my mind is most likely, is the elephant in the room, which is that timing is of essential importance here. The question whether this trial can get done before election day is of historic importance. And there are several reasons for that.

One, to be a little bit more realpolitik than the courts might be, there is this question of whether President Trump wins reelection and whether he, whether he terminates a criminal prosecution against himself. But even holding that aside, the American people have a right to know whether the people that they're considering voting for presidency, are convicted felons. And so there is this immense importance in getting the trial done prior to election day. And I'll add that, you know, President Trump, although he doesn't really say it this way President Trump has an interest in, you know, being exonerated as he claims he will be.

So this timing consideration might complicate the jurisdictional issue. And the reason is because if we're sort of playing it straight and applying Midland Asphalt, then yes, the D.C. Circuit probably should rule that there's no jurisdiction at the very least over the presidential immunity issue, if not both issues. But the Supreme Court is not bound by Supreme Court precedent in the same way that the D.C. Circuit is. So one possible concern is that, okay, so the D.C. Circuit rules that there's no jurisdiction, then former President Trump appeals that to the Supreme Court. The Supreme Court says, yes, we said this in Midland Asphalt, but this is obviously a sui generis case, so the question of presidential immunity has to be resolved before, before trial.

Then it goes back to the D.C. Circuit to address the presidential immunity issue on the merits, which would then be appealed again to the Supreme Court to decide whether the D.C. Circuit's ruling on the merits of the presidential immunity issue was correct. And so it could be a strategic calculation by the special counsel's office to try to avoid the possibility of two rounds of pre trial Supreme Court review.

Now that's just my speculation and this is also, it's also possible that, you know, the Supreme Court just agrees with the American Oversight argument about Midland Asphalt and says, yes, that's what we said in 1989 and, and we're sticking by it. So it's, it's really a very difficult strategic balance about predicting how the Supreme Court might view this jurisdictional argument.

Anna Bower: Ben and Quinta, what do you think?

Benjamin Wittes: So, first of all, I, I think the strategic timing question is a, important elephant in the room and partly because nobody is allowed to say the truth about the elephant, which is that, you know, it is important actually to try this guy before he runs for president again. And, everything that Merrick Garland has said as attorney general would be violated by, you know, about the Justice Department not behaving politically, would be done violence to if the Justice Department or the special counsel's office then turn around and said, well, the electoral calendar actually affects the way they're behaving, we're behaving. But yet the electoral calendar manifestly is affecting the way everybody's thinking about this case and by the way, rightly so if only because this is a very, very rare criminal defendant who depending on factors, outside of the four corners of the case, you know, gets to make the case disappear or gets to pardon himself, gets to replace the attorney general with somebody who will drop the case against him.

So there are very unusual features of this case. Now, 1 group of people that, that will definitely affect and who are allowed to think about this and don't have to admit that they're thinking about it is nine justices of the Supreme Court. Each one of whom, by the way, gets to vote to grant or deny cert for reasons that they don't have to explain.

So last time around, on the cert before judgment, they denied cert. I would be very surprised if they weren't thinking about timing in that context and whatever the D.C. Circuit does, you're going to have that same thing play out at least once more. And so, you know, I don't really know what you do about this. In fact, there's nothing you can do about it. But, you know, it does put everybody in the situation of having to think about political considerations and not being able to admit that you're thinking about political considerations.

Anna Bower: Stanton, do you have a response to Ben and Matthew?

R. Stanton Jones: Yeah, so certainly the timing question is of critical importance, and it's something that we gave a lot of thought to before filing the brief. I think that there is a world in which the jurisdictional argument offers an opportunity and maybe the best opportunity to move the case back to Judge Chutkan's courtroom for trial promptly before the election. If you play things out, if the D.C. Circuit panel decides the merits of former President Trump's arguments and rules say against him, that he's not immune, he doesn't have any form of immunity here.

I think there's a high likelihood that the Supreme Court would review that merits judgment. Former President Trump would certainly seek certiorari on it. And the special counsel through seeking cert before judgment has already acknowledged, and in fact, affirmatively argued that former president Trump merits arguments are cert worthy, they are, they merit Supreme Court review.

The jurisdictional issue may well be different. A dismissal of Mr. Trump's appeal now, his interlocutory appeal for lack of jurisdiction, I think, unlike the underlying immunity arguments, really may not be cert worthy. It's a pretty routine application of an old Supreme Court decision that courts of appeals apply all the time. There are dozens, maybe hundreds of court of appeals decisions over the last several decades dismissing interlocutory appeals where criminal defendants have raised all manner of arguments and claimed immunities. And so, maybe if the D.C. Circuit dismisses this interlocutory appeal for lack of jurisdiction, and former President Trump asks the Supreme Court to review that determination, it certainly seems like it would be an easy out. Particularly because the justices, as Ben said, don't have to explain their denials of certiorari, it would be it seems to me a fairly easy out for them just to deny cert in a case where the D.C. Circuit has simply found no interlocutory jurisdiction.

Matthew Seligman: And I think that's absolutely right. And it really frames the puzzle of this well. The puzzle is that the shortest path to resolution of this appeal is through jurisdiction and the longest path to resolution of this appeal is through jurisdiction. And so the shortest path could be really fast. You could have an oral argument on Tuesday and then the panel is just thoroughly convinced by the American Oversight brief and says, you know what, that afternoon. So, procedure in the D.C. Circuit is the judges meet to vote and assign the opinion immediately after oral arguments. They decide unanimously there's no jurisdiction and they issue an order that very afternoon saying so and then Trump appeals that order. And in 10 days, like we did in December on the special counsel cert petition, the cert petition is ruled on and the Supreme Court denies cert.

So there is a world in which this jurisdictional argument gets us back to trial court in maybe two weeks. And that would be the fastest road. And that would give the highest likelihood of completing trial not even before the election, but before the nominating conventions. But as I mentioned before, the longest path is also through jurisdiction if the Supreme Court disagrees with the D.C. Circuit and American Oversight about the jurisdictional argument.

And so then it's, you're balancing these really difficult considerations about risk and about whether you think that the Supreme Court is likely to stick by Midland Asphalt in these, these extraordinary circumstances. I think there's a good chance that it would, but there's also a decent chance that it wouldn't. And then we start to feel like we're rolling the dice. Now, and the merits path Stanton and American Oversight are absolutely correct that they, the merits path is, almost certainly going to result in substantive Supreme Court rule. They're gonna grant that cert petition. The special counsel's already said it's a cert worthy issue as Stanton said.

So that's going to take a couple months, but it's not going to take as long as two trips to the Supreme Court. So, you know, I think this, I think reasonable minds can really differ about the strategic consideration of whether you want to sort of take a guaranteed 3 month delay in trial from here or whether you want to roll the dice to try and get it back to the trial court in a couple of weeks at the risk of having a 6 month delay.

Anna Bower: Right, and, and so I think what this raises is just the fact that there are so many different outcomes that could come out of this oral argument before the D.C. Circuit. It could be that the circuit court decides on the merits that there is no presidential immunity in the criminal context at all. It could be that it decides that even if there is it doesn't apply here, or it could decide on the jurisdictional question, or it could decide on the jurisdictional question, but then go into some kind of hypothetical argument on the merits.

So I want to hear from the panel, you know, what do you think is the most likely outcome here based on what we know about the judges on this panel? Stanton and Matthew, I want to start with you both because you are counsel in the case. So I know you've thought about this, but, but what should we expect after this oral argument in terms of a ruling?

Matthew Seligman: So I'll jump in here. I think that actually a possibility that you noted there at the end of the question is both my favorite outcome and what I hope is the most likely outcome, and that's that the that the panel rules that there is no interlocutory jurisdiction agreeing with the American Oversight brief, but then giving a holding in the alternative.

Even if we did have jurisdiction, we would reject the presidential immunity argument and the double jeopardy-esque argument on the merits. Now for the lawyers in the audience, this may sound like something you're not allowed to do because, you know, the Supreme Court has said a thousand times if the court lacks jurisdiction, its only duty is to announce the fact and then dismiss the case.

But we talk about this as jurisdiction in the appellate court, but it's not really a jurisdictional issue because the collateral order doctrine and the final order rule are judgement rules about the pathway through the courts, the appellate process that courts will take when they have jurisdiction.

It's not about whether the Constitution gives or deprives the appellate court of the power to act. And so I do think that the D.C. Circuit could, and perhaps wisely would, give the Supreme Court a menu of options. It would say, there's no jurisdiction under Midland Asphalt, but we recognize that maybe this is a extraordinary case that the Supreme Court might disagree with us about that. And therefore we're giving this holding in the alternative that President Trump doesn't have absolute immunity from criminal prosecution for his official acts. And what that does is it sets up a menu of options for the Supreme Court where the Supreme Court could, if it agrees with the jurisdictional argument, deny cert. And then we're back to the trial court pretty quickly.

Or it could say, okay, we disagree and so we're going to rule on the merits of the presidential immunity issue and then do so without having to go back to the D.C. Circuit to get another ruling on the merits there first. And so that's a way that, if the panel were willing to do it, could give us the best of both worlds where it gives the Supreme Court the option of denying cert or ruling very quickly that there's no jurisdiction, but also not risking the two trips to the Supreme Court that a merits only ruling would risk.

R. Stanton Jones: So I like Matthew's perspective a lot. In fact, in the American Oversight amicus brief, we dropped a footnote suggesting exactly that approach. And we wrote that if the D.C. Circuit has a concern that limiting its decision exclusively to the jurisdiction issue might impede, prompt Supreme Court review of the merits issues the D.C. Circuit could exercise what's often referred to as hypothetical jurisdiction to address the merits of the immunity arguments in a decision that dismisses the appeal. So, and we cited a case that seems that it would permit that approach.

I'll offer one other possible spin on a possible outcome. I think it's possible that the D.C. Circuit panel could say that Midland Asphalt does supply the relevant test that there's no interlocutory appeal absent, an explicit textual guarantee against trial. And then could say, applying that test here, we cannot hear Mr. Trump's appeal on the presidential immunity argument, really his first argument, because he doesn't even point to specific constitutional text that supports that argument. It rests on seven considerations that he identifies like history and tradition and structure. It's even as he frames it, it's not a textual argument. But I think the panel could potentially say that on the, Mr. Trump's other argument that rests on the impeachment judgment clause, it's a, maybe a bit of a stretch to say that, that, you know, he's claiming an explicit textual guarantee against trial, but at least he does point to some text.

And so the D.C. Circuit could find that it does have jurisdiction under Midland Asphalt to decide the impeachment judgment clause argument only. I think that on the merits, that impeachment judgment clause argument is by far the weaker and weakest of former President Trump's arguments. And I also think that if you start gaming out the strategy and the timing considerations, a D.C. Circuit decision that refuses to decide the undeniably weighty questions about presidential immunity on the merits, based on lack of jurisdiction and only decides the merits of Mr. Trump's impeachment judgment clause argument, the merits of which seem pretty clear that the argument is a loser. That D.C. Circuit decision might be the one that gives the Supreme Court the absolute easiest out in terms of denying cert. It certainly would be simple enough to write a brief in opposition to that cert petition saying, you know, the case is a bad vehicle because it only decides half the issues and so should await final judgment

Matthew Seligman: And just to excavate some of the subtext, underneath what I, what I've said and what Stanton has said, I think we all agree that there's virtually no chance that the D.C Circuit holds for President Trump on the merits. That is to say that he, that either he is absolutely immune from criminal prosecution or that he is protected in this sort of double jeopardy-esque way because of impeachment, you know, and that just highlights the fact that there is really no precedent for this whatsoever. President Trump is trying to extend these precedents from the civil context and then make these, sort of, grandiose statements about executive power and immunity, but it's, you know, the Supreme Court might go there.

I can't rule that out, but I think it would be a stunning departure from precedent for a lower appellate court to do so. So what we're really talking about at the D.C. Circuit is not whether Trump loses, but how and how quickly and what that ultimately means both for further Supreme Court review and then ultimately the way the trial plays out.

Anna Bower: And Quinta, what's your best guess as to, as Matthew put it, how Trump will lose at the D.C. Circuit?

Quinta Jurecic: I completely agree that Trump's going to lose. His arguments are, I think, not particularly strong and he's making them in a pretty aggressive, bombastic way. And especially in light of the D.C. Circuit's ruling in Blassingame, the, the court really has the, the tools sort of already laid out in the intellectual framework to rule against him.

But I think what's important to keep in mind here is that I don't know if Trump, well, I don't know what Trump personally thinks, but I, I don't imagine that his legal team thinks that he's, he's actually going to be able to win. The name of the game is, as we've kind of addressed, delay to see how far back he can push the beginning of this trial. And I think that, that gets to another point that we've, we've all made, which is just simply that there are so many different institutional actors here and that this is complicated to determine because we're all trying to kind of game out the different incentives of these different actors along with the weighing the strength of the various legal arguments.

All of this is a way to say I don't really know what's going to happen and I'm not going to guess. But I do think that, you know, one thing that I've kind of observed as we've seen courts deal with Trump in, in various ways, and particularly in this case, is that I think there's a little bit of everyone kind of trying to not be the one left with the hot potato and to say, you know, I, I really don't want to be the ultimate arbiter on this one. Please will someone else take a look? I think we kind of saw that a little bit with the Supreme Court's denial of cert before judgment. And so I'll be interested in seeing how the hot potato is passed around this time, so to speak.

Anna Bower: Ben, what is, you get the last word on this.

Benjamin Wittes: The last word is speed. I expect this, the D.C. Circuit, the briefing schedule was extremely fast and I expect a ruling very quickly. And whether it's a ruling on the merits or a ruling on jurisdictional grounds, I expect the D.C. Circuit to effectively honor Jack Smith's request to expedite the delivery of the mandate and to thereby, as Quinta describes, throw the hot potato into the air and say it's yours to catch it, if you feel like it, justices.

Anna Bower: All right. Well, through this conversation, we've eaten our vegetables. We've talked about presidential immunity. We've talked about how it applies to Trump. We've talked about jurisdiction and we've made our best guesses as to what the D.C. Circuit will do. But I do have one last prediction question. And it comes in light of news that Trump has, has claimed that he will show up at the appeals court on Tuesday for the oral argument about presidential immunity.

So, I want to hear your thoughts, Stanton, Matthew, Ben, Quinta, do you think that Trump will actually show up at the appeals court on Tuesday?

Quinta Jurecic: I don't know, but I predict there will be a line.

Matthew Seligman: I second that. I, I'm going to guess that he's not going to show up. He's said this before, that he'll show up in court and hasn't done it. You know, the appellate proceedings are a little less dramatic, and he's got a lot on his plate these days, so I'm going to guess that he's, this is all bluster and he's not going to show up.

R. Stanton Jones: Having been in that courthouse on a day when he did show up for the day of his arraignment, for the sake of the court staff there, I hope that he doesn't come. It is a complete zoo when he is present.

Benjamin Wittes: I will just say no, he will not come because there is nothing more boring to somebody like Trump than a D.C. Circuit argument. And I say that as somebody who cut my teeth covering D.C. Circuit arguments and loves them very, very dearly. That probably reflects the personality difference between me and Donald Trump. I have one other prediction, which is if he comes to his first D.C. Circuit argument on Tuesday, he will never come to a second D.C. Circuit argument.

Anna Bower: Matthew, Stanton, Ben, and Quinta, thank you so much for joining us today. I, for one, will be hoping that he does not show up, if only because I do not want to be waiting in line overnight outside of the D.C. Circuit Court.

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