USA v. Trump: Is He Immune From Prosecution?
But Does the D.C. Circuit Have Appellate Jurisdiction?
Trump filed a Motion in the D.C. District Court, before Judge Chutkan, claiming that the criminal case against him, brought by Special Counsel Jack Smith, must be dismissed for two reasons: (1) he claims he cannot be prosecuted for anything arising out of the January 6 Insurrection because he has absolute immunity for actions undertaken when he was president and (2) as president he was impeached by the House but acquitted by the Senate, so prosecution on the same acts would be double jeopardy.
Judge Chutkan denied Trump’s Motions and stated that Trump “may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.” The Judge denied Trump’s claims of Absolute Immunity and Double Jeopardy. Trump then filed an appeal to the D.C. Circuit Court of Appeals.
Oral argument was held in the D.C. Cir. on January 9, 2024 where Trump attorney John Sauer made the now famous response to Judge Pan that if a president ordered SEAL Team 6 to assassinate a political rival, the president could not be prosecuted unless he was both impeached by the House and convicted by the Senate. If the president is not convicted by the Senate he could not be prosecuted for murder of the political rival according to Mr. Sauer, as lawyers and commentators reacted in horror that a Trump lawyer would make such an egregious argument. But observers are confident that Sauer was espousing the views of his client, former president Trump.
Trump’s legal arguments are like his campaign speeches: based on nothing but disengagement from the facts. Any sensible reader of the Impeachment Clause of the Constitution sees it really says that conviction by the Senate is not a bar to criminal prosecution. But Trump and his lawyer turn it topsy turvee to claim it means that only after Senate conviction can a presidential murderer be prosecuted. This absurd result is the product of fanciful Trumpian imagination.
Similarly, Trump’s attorney argued that it would be Double Jeopardy to prosecute Trump after he was not convicted by the Senate. But there is no case law even suggesting that an impeachment proceeding is Jeopardy as that term is defined legally, and there is no basis to claim that the Double Jeopardy Clause has any relationship to the Impeachment. Once again Trump and his lawyer engage in mystical thinking claiming that the failure to have two-thirds of the Senators voting to convict means that Trump was in “jeopardy” and cannot be criminally prosecuted for the same offenses.
Trump’s lawyers dress up his arguments with false and misleading citations to seek an improbable and extra-Constitutional result. Trump clings to the hope that “his Justices” will take care of him in the Supreme Court.
But Trump’s Arguments to Prevent Prosecution May Not Get to the Supreme Court
One group, American Oversight, dedicated to promoting transparency in government functions and ensuring accountability by enforcing the public’s right to review governmental records, filed an Amicus Curiae Brief in the D.C. Circuit taking the position that the D.C. Cir. does not have appellate jurisdiction to hear Trump’s appeal. Though Special Counsel Jack Smith said in his brief that the Court had appellate jurisdiction under 28 U.S.C. sec. 1291, American Oversight pointed the D.C. Cir. to the Supreme Court decision in Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989), which dismissed an interlocutory appeal in a criminal case unless based on an explicit textual guarantee against trial. It applied the final collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1989), saying that to be considered, the order must resolve an important issue separate from the merits, but most importantly that it is effectively unreviewable on appeal from a final judgment.
If the collateral order meets that test it can only be reviewable on an interlocutory appeal if the claimed right “rests upon an explicit statutory or constitutional guarantee that trial will not occur.” 489 U.S. at 800-01. The Supreme Court has only identified two such explicit guarantees: the Double Jeopardy Clause and the Speech or Debate Clause, the latter of which only applies to members of Congress.
The Speech or Debate Clause has no application in Trump’s appeal, and Trump’s Double Jeopardy argument, that he cannot be prosecuted because only 57 Senators voted to convict him, and they did not equal the two-thirds of all Senators required to convict, has no support historically or textually. But Trump’s argument that “jeopardy” attached through impeachment proceedings finds no supporting authority. Jeopardy applies to prior criminal proceedings not to the political impeachment proceedings.
In response to American Oversight’s argument against interlocutory appealability, Trump’s lawyers cite United States v. Nixon, 418 U.S. 683, 690-691 (1974) (the Watergate Tapes Case) saying “denials of presidential privilege in the criminal context are immediately appealable.” Trump Reply Brief at 1-2. But Trump’s lawyers are misleading the Court since in the Nixon case the issue involved Leon Jaworski’s, the Special Watergate Prosecutor, attempt to enforce a subpoena on Nixon to produce the tapes, and a Motion was filed by Nixon to quash the subpoena. The Court recognized that this was an interlocutory order in a criminal case against various former members of the Nixon White House which are normally not appealable. But the Court said it would create a limited exception here since without one, the Special Prosecutor would have to file a Motion to hold Nixon in contempt of Court in order to have an appealable order, and the Court said initiating contempt proceedings against a sitting president solely to obtain an appealable order to examine Nixon’s claim of executive privilege was unseemly. The Court said, “[T]o require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling would be unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government.” Id. at 691-692.
So United States v. Nixon does not stand for the broad proposition claimed by Trump that “denials of presidential privilege in the criminal context are immediately appealable.” Unlike Trump, Nixon was not the defendant in those criminal proceedings, he actually was the third party resisting a subpoena.
What is most interesting is that if American Oversight’s argument that there is no appellate jurisdiction is adopted by the D.C. Cir. Court, the Supreme Court would not be likely to grant Trump’s Petition for a Writ of Certiorari since the appealability decision would be based on existing Supreme Court precedents and not on the merits, if any, of Trump’s Motion to Dismiss his prosecution. The Supreme Court would be likely to deny Trump’s Petition and remand the case to the District Court for trial.
If that were to happen, Judge Chutkan could resume trial preparations and schedule a fixed trial date for Trump in the near future.
Information: American Oversight is represented in the Trump case by the famous law firm of Arnold & Porter Kaye Scholer LLP.