The Lawfare Podcast: The D.C. Circuit Rejects Trump's Immunity Claim

[Audio Excerpt]

Quinta Jurecic: There are some aspects of the opinion, even beyond the per curiam aspects that speak to me to the way that this is really crafted to allow the court to deny cert if it wants to. So, they point at multiple points to opinions by some of the conservative justices in Trump v. Vance, the case involving whether or not Trump could be subject to a criminal process from the Manhattan DA while he was in office. The opinion cites not only to Justice Kavanaugh's concurrence. They also point to Justice Thomas's dissent in Vance, a line where he says that the president doesn't have total immunity in all circumstances. So there's a tip of the hat to the conservative justices there.

[Main Podcast]

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast, February 7th, 2024.

Yesterday, the D. C. Circuit Court of Appeals rejected former President Donald Trump's appeal concerning his presidential immunity defense in the federal government's January 6th case against him. I sat down with Lawfare Senior Editors Quinta Jurecic, Scott R. Anderson, and Roger Parloff, and with Lawfare Executive Editor Natalie Orpett in front of a live audience on YouTube and Riverside for a deep dive in the ruling. We discussed what comes next. We talked about what the Supreme Court might do in response. We talked about the court's ruling and its meaning and its unanimity. It was a great discussion and it's the Lawfare Podcast, February 7th: The D. C. Circuit Rejects Trump's Presidential Immunity Claim.

Quinta, get us started. We had a big delay. Everybody was wringing their hands, including us. Some people were doing a little more hand-wringing than other people. What can we say about why the delay happened now that we've seen the opinion? What do we know?

Quinta Jurecic: So the context for listeners who haven't been wringing their hands quite as much as I certainly have been, is that the D. C. Circuit moved pretty quickly to hear this case, to hear the arguments. They seemed quite aware of the enormous importance of what they were considering, especially because this case has stayed at the trial level until this immunity issue is resolved. So essentially, the whole thing is on pause. And that is of course important, although Jack Smith won't and can't really say this directly, because it raises the question of whether or not the case is going to go to trial in such a time as to be able to finish before the November election.

So we had all sat down here to talk about oral arguments after the fact and confidently, I know Ben, you and I said this, others may have as well, said that we were sure that the D. C. Circuit would rule within 48 hours or by the end of the week or maybe within two weeks. And instead they took a month.

Benjamin Wittes: I just want to say it's 48 hours in geologic time.

Quinta Jurecic: Right. Well, so the thing is, and listeners should be aware of this, of course, on the normal schedule of an appellate proceeding, that is very fast. Appellate courts to take their time. In this instance, it seems they really sped things up, but nevertheless, given that the clock is kind of ticking down until the election, that every minute kind of counts. So it's been a month, I think exactly a month, and we finally have this ruling. Of course, we don't know what happened behind the scenes, but it's notable that this is a per curiam ruling, so it means that there's just one ruling issued in the name of the court, not in the name of any particular judge.

And that's particularly notable because this is a panel with a pretty wide range of ideological views. So we had two judges, Michelle Childs and Florence Pan, who are appointed by Joe Biden. One judge, Karen LeCroft Henderson, who was appointed by George H. W. Bush, and who is a pretty solid, I think it's fair to say, conservative vote on the court.So I think it is fair to surmise that the delay, such as it was, might have been because the judges were really working together to try to write an opinion that they could all agree on and speak with one voice, presumably of the mind that being able to say, "This is coming from all of us, this is the view of the court as a whole," really strengthens the credibility of the decision for the public, but also for the en banc D.C. Circuit and possibly for the Supreme Court as well.

Benjamin Wittes: All right, so let's walk through the various components of the opinion before we talk about the implications of the opinion and its prospects before higher courts and its implications for a trial schedule. Scott, neither side raised a jurisdictional issue, but a group called American Oversight did. You were, I don't want to say contemptuous of this argument, but not impressed by this argument. And we had a lot of back and forths about it on this show at the time, including having its author, the author of the American Oversight Brief, discuss it with us. Walk us through the argument and what the D. C. Circuit panel did with it.

Scott R. Anderson: Yeah, absolutely. So, American Oversight posited a pretty novel jurisdictional critique that neither party had advanced. Because both parties really were seeking review of this. Remember, former President Trump is seeking interlocutory appeal of these issues, it's trying to get review of them. And then Jack Smith originally tried to take them directly to the Supreme Court for a quick resolution and was shot down by the Supreme Court in December. So both parties, by the time this got to the D. C. Circuit, had already thrown their lot in with the idea that the courts can review this.

American Oversight argued that under a Supreme Court decision called Midland's Asphalt from 1989, that actually if you are dealing with a right to not go to trial, that that decision uses the phrase "explicit," as in you need to have an "explicit constitutional or statutory guarantee" to have that issue be subject to interlocutory appeal. And The American Oversight kind of seized on this particular argument, this particular clause, saying, "Well, look, what Trump's arguing here isn't really explicit." Arguably, parts of it verge closer to being explicit than not. It's his real main argument, though, is really structural, though. It's this idea that there's an implied immunity for the president because that's just how we think about the separation of powers working. And they said, "Well, look, Midland's Asphalt said it has to be explicit, and it's not explicit."

So on its plain face, the argument made some sense, but the panel wasn't really persuaded by it. And I think for reasons why, I will be honest, I did not find it particularly persuasive either, in that it is a highly, highly literal reading of a Supreme Court decision from many decades ago, where the panel said, essentially, we really shouldn't make a mountain out of a molehill on the wording of certain cases. Here the panel read the word "explicit" being used to basically distinguish between two different bundles of legal rights that they were discussing in Midland's Asphalt, not as establishing a strict limit on what sorts of claims could be brought forward.

And in particular, they noted that it doesn't really make a lot of sense to treat implicit and explicit rules for avoiding trial as subject to different rules of interlocutory appeal. The whole logic of interlocutory appeal is that these are matters that can dispose of this matter or be particularly damaging to the underlying claim. And here, both implicit and explicit claims do that same thing, essentially. So if you were to say, "Well, look, he has a right to not be tried, but it's only implicit." The idea that because it's implicit, not explicit, we should hold that to the end, doesn't do a lot of justice to the actual underlying legal principles.

And then finally, the court noted that, in fact, the Supreme Court has previously said there are certain circumstances where, because the president is the president and involves pretty sui generis legal considerations, where the court carves out some unique procedural rules. And they basically said, "We think that weighs here because it would not be great for a former president to have to go on criminal trial only for us to later say, after the fact, 'No, he has a right to not go on criminal trial.'' it just was implicit, not express. Based on all these factors, they basically said, "We're going to read Midland's Asphalt as a strong advisory, as a general principle that we should treat the collateral order doctrine, this idea that you can pursue these matters on appeal in the middle of a trial, as applying only very narrowly in the criminal context, but not so narrowly, not so rigidly as only requiring the explicit rule." and once they reached that conclusion the argument advanced by American Oversight more or less fell out, and the panel had no problem establishing that they had jurisdiction as both parties agreed in proceeding to the merits.

Benjamin Wittes: All right. So Quinta, walk us through the merits. Nobody expected Trump to prevail, I don't think. On the other hand, this seems pretty authoritative and complete in its rejection of his arguments. How does it line up with Judge Chutkan's ruling below?

Quinta Jurecic: I'll confess I have not read this alongside Judge Chutkan's ruling. But overall, I think the takeaway is pretty similar. They're both pretty resounding rejections of Trump's argument. And importantly, and this is something we can talk about later, they address the issue in a sweeping way, saying there is no absolute categorical criminal immunity for former presidents, rather than kind of getting down into the details of was this or that act as charged in the indictment something for which Trump could potentially be immune. So, it's written in a pretty, I think, clear and straightforward way. It essentially sets out three arguments that Trump made and goes through each of them in turn. So I'll give a very high-level overview. We can dive into them more as we like .

So first off, Trump argues that separation of powers considerations bar courts from reviewing what he claims are official presidential actions. This is, for listeners who are listening to oral argument, this is the argument about Marbury v. Madison. And you may recall that Judge Henderson had a long exchange with Trump's counsel about their interpretation of Marbury and The distinction between a discretionary and a ministerial act. I will hold back from giving a detailed overview of this argument, but I think the real takeaway, essentially, is that while yes, there are certain things that the courts can't review when it comes to presidential actions, there are certain things that they can review, and those things include when the president has a specific legal or constitutional duty to act in a certain way, to take a certain action. And in this instance, Trump is alleged to have broken the law. He did not abide by legal restrictions. And so for that reason, essentially, because he is being prosecuted, there is appropriately judicial review of his actions.

So that brings us to the second argument, which is that criminal immunity essentially is necessary to ensure the proper functioning of the Executive Branch. The short version of this argument is essentially that without some kind of criminal immunity, presidents will constantly be looking over their shoulders, they'll be uncertain whether they might be prosecuted after leaving office, and that will just prevent them from doing their job. The court is not particularly impressed by this. It points out that up until now, past presidents did assume themselves to be subject to potential criminal liability, which is something that you see, and they point to this directly, in Gerald Ford's pardon of Richard Nixon. And that doesn't seem to have substantially restrained presidents' ability to carry out their jobs. So they're not particularly worried about that. And, on the other hand, there is a really strong interest, not only on the part of the public, but also on the part of the Executive Branch, which I think is important, in ensuring that there is criminal accountability for alleged violations of the law. And particularly, the court says because the conduct alleged on behalf of Trump is uniquely anti-democratic, that it was an effort to override the votes of American citizens and that it was also an effort to override what the court describes as the most fundamental check on executive power, which is elections. And so, in that sense it is deeply, deeply important that presidents be constrained, rather than be able to do whatever they without regarding the check on their power that elections represent.

That brings us to the third argument, which is a bit of a technical one. This has to do with the Impeachment Judgment Clause, which essentially states that presidents who are--well, people other than presidents, but for the purpose of this conversation, presidents--who are convicted in an impeachment proceeding, shall be liable and subject to indictment, trial, judgment, and punishment. So essentially, if you were convicted in an impeachment proceeding, then you can still be criminally prosecuted. Trump kind of flips that on its head and says, "Well, I was acquitted for my conduct over January 6th, therefore I cannot be prosecuted." And the court is also not particularly impressed by this. I think we can pretty fairly say that this is a section that may have been written by Judge Florence Pan. She had a long exchange with Trump's counsel on this during oral argument, kind of just going into why this doesn't really hold together logically, why it's inconsistent with the history and the thinking behind the Impeachment Judgment Clause in the first place. And I think, importantly, she turns the argument on its head and points out that Trump has potentially really created a logical problem for himself. So if he's arguing that the Impeachment Judgment Clause requires a conviction before prosecution, then that means that he's acknowledging that if it doesn't have that requirement, then the clause doesn't provide any impediment to the prosecution. And also, that that suggests that there can be no total absolute criminal immunity for former presidents, because he is acknowledging that if you were convicted in an impeachment proceeding for particular conduct, then you could be prosecuted on that basis. So the court is kind of poking holes in Trump's own argument there.

That's the very, very short version. We can get more down into the details, and there's certainly a lot to dig into, but I think the takeaway for me is that this is a pretty straightforward and resounding rejection of the case that Trump made.

Benjamin Wittes: All right, Roger. We all expected not necessarily this specific result, in the form of the jurisdictional argument that Scott made and the three-pronged argument that Quinta just made on the merits, but we all expected Trump was going to lose. The only question was how. Is this opinion a big deal, given that we all expected it, and it took a bit longer than we thought? And if so, why?

Roger Parloff: I think it is. An aspect of it that I didn't expect was that it's unanimous. I thought there would be two votes. I thought there would be a concurrence. I thought it would be a two to one decision, not with a dissent, but with a concurrence. Here, it's all three, and as you've both said, it's a range of--politically quite a range--with Karen LeCraft Henderson, who was originally appointed as a district judge by Reagan, really probably due to Strom Thurmond was her patron. So this is a range of political thought. And the fact that they could get her on board and it's a solid opinion, it makes the idea of a re-hearing en banc inconceivable. And I don't think Trump will apply for one. But I think it also lessens the possibility that the Supreme Court would take it as well.

The other thing that I thought was interesting--and it actually, I think most people will read it, you'll read it and you'll say, "Oh, well now it's decided presidents aren't immune from criminal prosecution.' And that's a fair reading, but it actually is case-specific to a degree. It says at the beginning, "We're actually, we're talking about this case." It repeats that at the end. It says at the very end, the last paragraph, something like , "We have balanced former President Trump's asserted interests against the vital public interests. And we find that it compels the rejection of his claim in this case." and the reason they say that, and Quinta mentioned it, there are these general reasons they don't think presidents are immune. But then they also threw in a few specifics about this case and the fact that, for instance, he is accused of violating crucial provisions of the Constitution, what's called the Executive Vesting Clause, for instance, which is Article II, Section 1, Clause 1. You have an appointment for four years, and then you need to get re-elected, and he's violating that.

And this was an argument that actually there was a an amicus brief that was proposed by a number of former Republican officials. It was written by Richard Bernstein, who's a former Scalia appointee. This was on behalf of people like Judge Luttig and the former Deputy AG Larry Thompson and so on. And they were suggesting this, and I infer, as a way of appealing to more conservative judges who felt that Chutkan's ruling was too across the board, too open-ended, and that Presidents would never have the opportunity to say they might be immune for some act. And this allows a little more case-by-case. And I think that's important, especially if, say, hypothetically, you had some political party that believe very heavily in tit-for-tat and had some leaders who had some bad faith and bad judgment. You might find--suppose somebody tried to prosecute Obama for the attack on al-Awlaki, or I'm mispronouncing his name, but you know what I'm trying to say. I think you would still have leeway here to say, "Well, that was more of a discretionary act of the president within--it wasn't directly opposed to general criminal law as we think about it and it gives wiggle room." So I think it's a wise decision as well as a strategically and more bulletproof decision than Judge Chutkan's.

Benjamin Wittes: So, I want to come back to a point that Roger just made and ask Scott about it. But before I do, I'm curious for your views on the cert worthiness of this, because I can look at it both ways. I can say, on the one hand, this is not a cert worthy question, right? The district court was right. The appellate court is right. They have different emphases, but presidential immunity from trying to overthrow the constitutional order just isn't a thing. And we don't need another layer of appellate review to determine that there's not a conflict in the circuits among the matter. We don't know exactly what the Supreme Court would do with this, but we know there are not five justices to immunize the former president on these charges. So cert denied. Let the thing go forward. That's on the one hand.

On the other hand, you can say, Come on, there is no way the Supreme Court is going to let the D. C. Circuit be the last word on the biggest presidential power question in modern history with the guy actively both running for president and facing criminal trial, at the same time. This is going to be the kind of thing that the Supreme Court wants itself to be the final word on, and wants to craft the specific contours of exactly the point that Roger just made, which is hey, don't let the district courts bombast, sweep everything off the table. You want to preserve certain things. And so you're going to have a bunch of justices who are going to be like, "This is really our job to decide this." So what do you think? Is this a situation where an ideologically diverse panel does the work, writes 57 pages, really upsets Quinta with how long they take, and by doing that really disincentivize the justices from granting cert, and thus ultimately save time? Or is this a situation where they took their time, they did a good job, and then we're going to have two months of Supreme Court review anyway.

Scott R. Anderson: It's a great question, and it's the question we're all going to be debating for the next two or three weeks before we hear back from the Supreme Court about a potential cert petition. What I will say is that obviously the panel is trying to tee it up to make it as easy to deny cert as possible for the Supreme Court. The fact they put together a per curiam opinion that's ideologically diverse. They have structured, as hopefully we'll get into a little later, they have structured the associated judgment with this opinion in a way that really makes clear there's not going to be an en banc D.C. Circuit consideration of this, or at least very unlikely. They're clearly waiting for the Supreme Court to do something. And they have crafted the opinion in a fairly narrow way, which I think with very important caveat that Roger flagged about how to read it. Because if, if they are going to make, if President Trump is going to make a case for cert, and I'm sure he will try, what he's going to do is try and cast this opinion as much wider than it actually is, as having much broader holding.

Unfortunately, I think the opinion does leave itself open that if you don't read it a particular way, because it does essentially categorically say, "Hey, we're denying the idea that the Article III courts cannot sit in judgment on a president for official acts." That sounds very, very broad. But as Roger noted, I think quite correctly, an important counterbalance of that is they then go to what they call the kind of functional factors, the policy considerations, and they say, "But, in considering whether we can allow charges to go forward against a president in any given case, we have to weigh the different governmental equities involved." it's essentially leaving a door open for something that looks a lot immunity. It's just not going to be a long unofficial acts line, or something so categorical as former President Trump had offered. I don't think they do a great job flagging that last aspect. I would have liked to see a little more telegraphing about saying, "This is a much narrower holding than you might think, than a lot of people might read it as, because we really are limiting this to the facts of this case." They actually say that expressly at one point, but I would have loved to see that at the very beginning, at the very end, just to constantly be reminding people we're crafting a very narrow opinion.

If I had to put money on this, I would say I think the Supreme Court's going to deny cert, because I think the Supreme Court doesn't want to get involved in this. I think it's a very weak legal argument by former President Trump. I think the D. C. Circuit has done a good enough job narrowly carving its opinion and targeting and tailoring its opinion in a way that the Supreme Court will be able to look at it and say, "They're not really treading on the other bigger legal equities we really would feel we need to get involved in to address. I think we're okay with their handling of this particular case, and we would just assume not get directly involved. It's gonna be a messy situation for all of us, particularly given the weak arguments involved." And so, that's where I think the money falls on this, but we don't really know. Anybody who actually pretends they have a clear idea whether this is gonna be given a cert or not I think it has a much more better view of the Supreme Court than I do and I suspect might be a little overconfident in their understanding of the Supreme Court and how it is approaching this particular question.

Benjamin Wittes: What do you think, Roger and Quinta? If we're making reckless predictions here, are you working on the assumption that we're dealing with another Supreme Court layer of review or that we're done and the mandate's gonna go back to Judge Chutkan and we're gonna schedule a trial? Roger and then Quinta.

Roger Parloff: I agree with Scott for exactly the reasons he says. There's a part of me that wonders if Chief Justice Roberts, in the back of his mind, he knows already that they're going to reverse the Colorado court in the disqualification case, then that's more reason to let this one lie, to give a bone to each side. We're going to let Trump stay on the ballot, but we're going to also let him go to trial before the election. I hope that's not what he's thinking and what five justices are thinking, but that might be another factor.

Quinta Jurecic: Yeah, I've been on Team No Cert since the Supreme Court denied cert before judgment In this case, and I'm sticking to it for all the reasons that Scott and Roger have identified. I think also it's worth noting there are some aspects of the opinion even beyond the per curiam aspect that speak to me to the way that this is really crafted to allow the court to deny cert if it wants to. So they point at multiple points to opinions by some of the conservative justices in Trump v. Vance, the case involving whether or not Trump could be subject to a criminal process from the Manhattan D. A. while he was in office. The opinion cites not only to Justice Kavanaugh's concurrence, which I'll point to Natalie flagged that for the team. They also point to Justice Thomas's dissent in Vance, a line where he says that the president doesn't have total immunity in all circumstances. So there's a tip of the hat to the conservative justices there.

And then, and I'll give credit here to a eagle-eyed reader who pointed this out to me on Bluesky, there ia a paragraph where the court points to a number of cases litigating judicial criminal immunity for official acts and says, "These have largely been rejected at the appellate level." and if you look at that paragraph, what you see after each of those cases are the words in italics, "cert denied," which is a nice little touch and maybe a signal, perhaps, that if the court does decide to deny cert, that that's perhaps not so unusual and is actually a tactic that it's taken in the past when addressing questions of criminal immunity, albeit for judges rather than presidents.

Benjamin Wittes: Well, Natalie, do you want to be the one to say, of course, the Supreme Court is going to hear this case?

Natalie Orpett: I do not. My main takeaway here is that the panel did an exceptionally careful job trying to make its ruling as palatable as possible to a Supreme Court of varying impulses on this question. It is certainly a situation in which you can imagine the Court, or at least some justices on the Court, wanting to have the final word on a matter of such high significance and high stakes. On the other hand, this isn't actually going to be the end of whatever happens in connection with this case. And I think to the extent the Court wants to hold its fire, so to speak, there will be other opportunities for this case to appear before them where the implications of whatever ruling below are more complicated or are less narrowly drawn than this opinion is presenting itself as. That said, I have entirely given up on giving any estimation whatsoever as to what the Supreme Court will do.

Benjamin Wittes: So I am going to, since nobody else would do it, I am going to be the one who argues for cert here. I am going to make the argument for cert on the basis of three things. The first is we all want there to be no more delays, and a wrench always gets thrown into the plan for accountability, hence there will be more delays I don't know that there'll be big ones or small ones, but there's gonna be a special section of the brief for cert that's , it will drive Quinta insane, and it'll drive Ben insane and Natalie insane. And that's going to be an argument for cert. And I think one that would carry some weight with some of the justices.

The second argument, on a more serious note, is that, look, this is a potentially enormous presidential power question. And if the Supreme Court does not grant cert in there, in this case, this D. C. Circuit opinion will be the principal statement on this subject from now until the end of time, because we prosecute so few former presidents. And so every justice is going to look at this opinion with the following question in mind, which is, how much better would this have been if I had written it? And this may come as a surprise to a lot of you, but justices have healthy egos, and if they want the comma over here rather than over here, they are going to want to--some of those, the justices, may want this to sound a little bit more like Judge Chutkan's opinion, and some of them--I don't think there's three votes for the idea that Trump has actual immunity, but the colorations of it along the lines that Roger was talking about earlier, there are many ways to say "no," and I think that judges, justices facing this being the primary statement on the subject until the end of time, are going to want to put their stamp on it, because that's the kind of arrogant people that they are. So that is my case for cert actually happening.

Alright, let's talk about timeframe. Roger, you are the master of the mental Tanya Chutkan calendar, so give us a sense of what we know about a likely trial date and timeframe in light of this opinion.

Roger Parloff: So, the clock stopped on December 7th. That's when Trump appealed. There was an automatic stay. We've had 57 days pass. The judge says she wants to give Trump seven months preparation time. If the case was going back to her today, the trial could start April 30th. But it's not. So it's going to, the stay will continue until at least February 12th, according to the judgment order. At that point it will continue if Trump seeks a stay from the Supreme Court in contemplation of filing a cert petition. And then I guess it would stay in effect until they rule on that application for the stay before the Supreme Court.

If in the meantime, Trump, if instead of applying to the Supreme Court, he were to seek re-hearing en banc before the panel--or re-hearing of the panel or re-hearing en banc of the full D.C. Circuit just to stall, the order says that the mandate, the stay on the mandate would lift and the mandate would go back to Chutkan and the clock would start running and she could schedule trial. So that's a strong incentive for Trump to go directly to the Supreme Court. So it won't start in April, obviously. We can't start the trial again. It doesn't seem likely we could get it started in May, but early June is a possibility.

Benjamin Wittes: And what do we know about how long the trial is going to be?

Roger Parloff: Early on, Jack Smith or his office said four to six weeks for the case in chief. I don't remember an estimate by Trump's team of their case and it would not be credible in any event. Defendants always say, "Our case is gonna take four months."

Benjamin Wittes: "We have to call the entire deep state."

Roger Parloff: And and it always vanishes except for two witnesses. So, four to six weeks is still the estimate for the case in chief. That means six days before the defense case begins.

Benjamin Wittes: Yeah, okay so if we're gaming out and we use eight weeks as a four to six weeks for the case in chief two, three weeks more. So let's say, err on the long side and then add a couple weeks for the defense case. Let's say it's an eight.

Roger Parloff: Depends how verbose Kash Patel is.

Benjamin Wittes: Right, right. But they have no obligation to present a case. Often the defense doesn't present a case and when they do, it's never as developed as the prosecution case because it's not on them to tell the story. So let's assume we have a six week presentation and then two weeks for the rest of the case. So let's assume we have an eight-week trial. We could have the mandate delivered as soon as next week, and we need to add the two months back that we lost, so that would be earliest you could do is early/mid-May. And then eight weeks from that is mid-July. And so you have, with the Supreme Court consideration of this, every month you add adds a month to that timeframe, right?

So, the Supreme Court can waste three months on this without preventing a trial before the election, but it can't really waste more than three months. Is that a fair, rough back of the napkin calculation here, or is it more complicated than that?

Roger Parloff: Well, that might be right, but There are these other cases in play, which are--he can't be doing two trials at once.

Benjamin Wittes: You mean Aileen Cannon might race to beat the--

Roger Parloff: Well, I think realistically the New York case is a possibility. I don't know, honestly, how long the New York case was supposed to last. And that was scheduled to start March 25th. And then we don't know about the Fulton County case where she had asked for an August date, but then she had also toyed with the idea of moving that earlier, assuming, Fani Willis remains the prosecutor. So there's a lot of variables.

Natalie Orpett: Well, one additional point here, though, is it's not necessarily the case that we need to add on all of the time that Judge Chutkan had lost the mandate, because the scheduling order that she issued in advance of all of this, she's not bound by. She can manage her courtroom however she sees fit, as long as it's consistent with due process.

Benjamin Wittes: But didn't she say, I think she did say she was not going to penalize Trump for the time he spent asserting his rights at the D.C. Circuit or the Supreme Court that she would give him the seven months that she had originally scheduled.

Roger Parloff: She strongly implied that in a January 18th order. Trump's lawyers were complaining that the government was effectively requiring them to act by filing certain things. And she said, "I plan to give you seven months, you're going to get seven months."

Natalie Orpett: Yeah, I suspect she will, but she's not bound by it. It's not law. So circumstances can always change, and that is one additional variable that I don't think we should totally lose sight of. It's not an absolute given.

Benjamin Wittes: All right, so Scott, one thing that is an absolute given is that the former president is going to continue to try to bog everything down. Does he have a play here other than a cert petition, or is this just kind of running out of gas, and it was good for a couple months, and you may have one more round of appellate law on it, but then it's out of gas. Is it good for anything more than that?

Scott R. Anderson: I don't think so, in part because of how the panel structured the judgment that accompanied this opinion, which I think is really interesting and frankly, one of the more novel and kind of gutsier things the court did in this. They essentially said, "You have till February 12th, we're staying the mandate, meaning we're not going to let the trial court continue with this matter until February 12th." And then they said, "If the president applies for a stay at the Supreme Court, notifies as much in writing, then the mandate will remain unreturned to the district court," meaning the trial won't continue. So the Supreme Court interaction, other than the fact that Trump has to file it by February 12th, doesn't really change that much. But it said that even if Trump applies for a, petitions for, a re-hearing by the panel or a re-hearing en banc, that's by all the active judges on the D.C. Circuit, that will not stop the mandate. Maybe the mandate will be returned if those decisions are granted, but it's not gonna stop automatically the return of the mandate if you just petition for one

It's a really kind of gutsy move because you're basically strong strongly signaling to Trump, look, it's not worth it applying for these mandates. And if they thought other judges on the court would disagree, I don't think it's something that they would have done, honestly, because it would have been seen as disrespectful. They're essentially saying, "Hey, fellow judges with whom we have equal status, we are daring you to try and give an en banc hearing to this. We think it's so ludicrous, we're not even going to entertain it by staying on our mandate longer." My suspicion is that A), they know they're right because, frankly, this is a court where you have Democratic appointees outweighing, outnumbering Republican appointees. We know, especially with Henderson on board, with the Democrats, assuming both Democrats view this similarly to Pan and Childs, the votes are not going to be there for en banc anyway. But we don't actually know that, right? Of course, the judges are supposed to actually consider this. But instead, they seem to very comfortably be saying, meaning this panel, "We don't think there's a chance these judges will actually issue or agree to hear this en banc. We're so confident in that we're going to let the trial court proceed, and only if they decide otherwise are we going to pull back the mandate."

I think there's a non-zero chance that this was actually run by, informally, other judges on the D. C. Circuit, that this might be a lot more like an en banc decision than we think. This isn't totally unprecedented. In 2016/2017, there was a, I think, a Clean Power Act, if I recall, or Clean Power Plan challenge, where the D. C. Circuit, sua sponte, said "Hey, we're not even going to hear this in a three judge panel. We're going to go straight to en banc on this." And you see these things happen sometimes where the judges look at the reality that's kind of underlying the structural formalities of procedure about how they handle these cases. And sometimes they're willing to coordinate in a set of unorthodox or unofficial ways on an outcome. I kind of suspect that's what happened here. And that's only really the only way other than a really, really ballsy move by these three judges to explain how they structured the re-hearing en banc and re-hearing possibility.

It also may help explain why it took so long, because, of course, if you have an opinion that you want other judges to look at, you have to get opinion, write it with these three judges. That itself is a big undertaking. Judge Henderson is a slow, is a very loquacious writer and not a fast writer, so that probably adds to it. And then you got to give time for all the other judges to read it and maybe give feedback or talk about a little bit. So that might help explain the more extended timeframe here. But, if it ends up cutting re-hearing and re-hearing en banc out of the process, as it appears to have done, then the net savings to the timeline is substantial.

Benjamin Wittes: Particularly if the Supreme Court doesn't grant cert.

Scott R. Anderson: Especially if that's the case, yes.

Benjamin Wittes: All right, so Quinta, I assume that President Trump had a reasoned and thoughtful and measured response to the D. C. Circuit ruling, as is his wont?

Quinta Jurecic: Yes, he he wrote SAVE PRESIDENTIAL IMMUNITY!, exclamation mark in all caps on TruthSocial, and wrote, and I will just quote here, "A nation-destroying ruling like this cannot be allowed to stand if not overturned as it should be, this decision would terribly injure not only the presidency, but the life, breath, and success of our country. A president will be afraid to act for fear of the opposite party," opposite party? Their "vicious retribution after leaving office." There's also some creative 18th century-style capitalization in there.

I don't think that's anything beyond what we would have expected, frankly. This is in line with the legal arguments that he's making about how, "This immunity is important for the president to carry out the duties of his job. I'm nothing special I was just doing what every president does, and obviously the D. C. Circuit did not take that particularly seriously."

Benjamin Wittes: All right, Natalie, one thing that did not feature significantly in this opinion, which I honestly expected to, and Quinta and I some, I guess it's months back now, it used to be weeks back, wrote a piece about Fitzgerald immunity and the criminal immunity side of the coin. And one thing that did not show up here much is a lot of discussion of the D. C. Circuit's discussion of Blassingame, the case where it was asked to consider civil immunity for Trump in connection with, January 6th, and the Fitzgerald standard. So given that there are only so many ways to slice an immunity onion, why is Fitzgerald and Blassingame not a bigger presence in this opinion than it is?

Natalie Orpett: Yeah, so just to back it up for those who are not too, too enmeshed in this, Blassingame was the case brought by various members of Congress and congressional police against Trump for civil liability. The D. C. Circuit ruled recently in that after a very, very long wait on that opinion as well, much longer than this wait has been, that Trump is not immune from civil liability. It followed on case law in Nixon v. Fitzgerald, which is what Ben just referenced. In that case, the question of civil liability, I'm sorry, I should specify, in Blassingame, the court addressed the question of immunity from civil lawsuit for the president by making a distinction between non-official acts by the president and official acts by the president, and ruled that, to simplify things a little bit, that a president cannot be held civilly liable for acts undertaken in his capacity as office-holder, but can be held liable for acts undertaken in his capacity as office-seeker. So as a political candidate. So this in Blassingame, the context was his conduct at the Ellipse on January 6th and related conduct. The court there, the D.C. Circuit there said these were acts that were not official acts of the president, but were rather acts of a political candidate running for president.

So that distinction could have come up here. There could have been analysis in this decision about whether the conduct alleged in the indictment constituted official acts or non-official acts, but instead, the court here followed on very tightly to what it called "Marbury v. Madison and its progeny." and in that line of cases, the distinction was not between official and non-official acts. The distinction was between types of official acts, namely what they call "discretionary acts," which are political judgment acts, and ministerial acts, which are, again, also official acts, but this time, acts that are mandated by law, either by the responsibilities for the president set forth in the Constitution or by acts of Congress.

So I think I'll turn it over to Quinta to talk about the advisability of doing it this way, rather than relying on Blassingame. I think the one thing I will say is that it was very clear after listening to oral arguments where this particular instinct came from. And I think it does do a really important thing in terms of anticipating what the concerns might be for the Supreme Court.

Quinta Jurecic: Thanks, Natalie. So there's this footnote 14 which, I don't know, maybe it will live in infamy along with footnote four--that's a real nerd, deep-level, deep-cut nerd joke for those of you who are paying attention. So where the court kind of says, "Look, we're not addressing this official versus unofficial act question. But, we'll point you to Blassingame," and kind of says at the very end, and I'll just quote here: "It is thus doubtful that all five types of conduct alleged in the indictment," that's quoting from a brief by Trump, "constitute official acts." So there's this kind of suggestion of we're not going to get into this here, but if somebody else, Supreme Court, if you wanted to get into it here's an intellectual framework that you might use.

I also think it's interesting that you see hints about how they might have thought about that distinction in the sections of the opinion on Marbury and the section on addressing thee public policy considerations. So the Marbury section, I do think that that the distinction between discretionary and ministerial and the idea that if something is ministerial, it can be reviewed, and if a law has been broken, that that can be reviewed as a kind of inverse of the ministerial role of the presidency, that you can see it's not quite official/unofficial, but there's a similar way of trying to cleave off parts of Trump's conduct that are acceptable and parts that are not and make that division, which is something that Ben and I have written about a lot. So that's kind of another axis maybe. And then you also see this in the section on the public policy implications, given this point that's made that Trump is, as alleged in the indictment, acting to prevent the laws from being implemented. The law in question being the constitutional transfer of power and the Electoral Count Act. And so, that's kind of another way. So you do see these hints.

I suspect that perhaps the court just didn't want to have to really slice and dice the indictment and decide what's in and what's out, especially since they were operating on a constrained timeframe. But if the Supreme Court does decide that they want to take this up, I think that there's a number of frameworks they could use to address the issue.

Benjamin Wittes: But I also think, just at a basic level, Blassingame, that Fitzgerald framework only applies if there is immunity. And if you're just declaring as a blanket matter, "I'm sorry, when you're trying to overthrow the election," and it's a narrow opinion, "we're only talking about criminal charges where you're trying to undermine democracy, there's no immunity." Then you bypass all those questions that you and I spent a lot of time trying to parse over because it's like driving a steamroller over something.

All right, Scott, we are looking, the next step is, I guess, a quick question of whether the Supreme Court slaps a stay on this during a cert process, and then a cert process itself. So, what are we looking for as this now heads to the Supreme Court or back to Judge Chutkan? What [do] the next three weeks look like?

Scott R. Anderson: Essentially, the mandate is still being held through February 12th. That means that we're going to see something happen in the next five days, because if former President Trump does not seek a stay from the Supreme Court pending a petition for cert, then the trial court's going to start proceeding with the trial again. So we know that's going to come in the next five days. I strongly suspect that you will see first a motion for the stay because it's an easier order to write, an easier thing to lay out, and you'll see actually the full petition for cert coming later, where they will spend a little more time on it. There's a longer timeframe for that, they can dig deeper into their arguments. That initial motion for a stay requires a vote of five justices, whereas cert only requires a vote of four. And one of the factors they're supposed to be considering, or a couple of the factors they're supposed to be considering, is the likelihood that you're going to be granted cert and the likelihood that you're actually going to win on the back end.

So in theory, you could read this as a, maybe a proxy for how judges might be feeling about the ultimate issues of cert. I would hesitate to do that, because I think this is a case where a lot of justices are going to want to tread carefully, if they are even considering taking this up or if they're considering considering taking this up in a serious way. And so, I think even though you might say, "Well, if there's not some sort of likelihood of success at the back end, you're not supposed to see a stay in the mandate in this case. I think you might still, because it's still the president. There are still major separation of powers equities, I think justices, even if they ultimately rule against Trump, are going to be hesitant to do so too without at least giving some consideration. And clearly here, that's what the court here is anticipating that being the next step. And so we'll get that sort of vote there.

Now, if they say no, that is probably a bad sign for Trump, to say the least, because the trial will be restarting again. Obviously enough justices did not see a likelihood on the outcome or didn't think the stakes were high enough for Trump to warrant that sort of action. If you see a yes, that also doesn't necessarily mean, though, that you're going to see cert. Yeah, it means that five were willing to hold up the trial, or they considered, waited for a full cert brief, because again, I suspect they're going to rule on this, or at least receive this application for a stay before they actually get the full petition for cert. I wouldn't read too much into that either way. I suspect we're going to see a lot of gnashing of teeth and a lot of concern, whichever way the Supreme Court ultimately ends up ruling on this, and once we see this motion entered in. But I wouldn't use it too much to judge despite the vote thresholds, despite the various standards applied. I think we won't really know what the Court's going to do on cert until we see the Supreme Court.

Benjamin Wittes: We won't know until we know. In other words, we're going to leave it there. Scott R. Anderson, Natalie Orpett, Quinta Jurecic, Roger Parloff. Thank you all for joining us today.

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode testing our really cool snazzy new system for live streaming and podcasting was Ian Enright of Goat Rodeo. Folks, you missed the opportunity today to be in the studio with us watching this live recording that's sad for you. But tomorrow, you can be there. Thursday we're gonna do it again and you can be there. Become a material supporter of lawfare. Do it at lawfaremedia.org/support. Come into the light. Join that chat with our lovely material supporters. It's a high-level, serious discussion every time, and you can be part of it.

The Lawfare Podcast is edited by Jen Patja. Our music is performed by the one, the only Sophia Yan. And as always, thanks for listening.