After Speedy Start, Appeals Court Slows Down on Trump Immunity Decision
"The implications have started coming into focus with the scrapping of March 4 as the start date for the former president’s federal trial on charges of trying to overturn the 2020 election.
In December, when a federal appeals court agreed to hear former President Donald J. Trump’s sweeping claims to be immune from charges of plotting overturn the 2020 election, it laid out a lightning-fast briefing schedule, asking the defense and prosecution to file their papers on successive Saturdays during the Christmas and New Year’s holidays.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit also moved with unusual alacrity in setting up a hearing for arguments on the issue, scheduling the proceeding on Jan. 9, just one week after all of the papers were submitted — a remarkably short window by the standards of the judicial system.
But after sending up what appeared to be clear signals that they intended to swiftly resolve this phase of the immunity dispute — which lies at the heart of both the viability and timing of Mr. Trump’s trial on the election subversion charges — the appeals court judges have yet to issue a decision.
The implications are already coming into focus. On Friday, the Federal District Court judge overseeing the election case, Tanya S. Chutkan, formally scrapped her plan to start the trial on March 4. She was bowing to the reality that time had run out to get the proceeding going by then, mostly because of the wrangling over Mr. Trump’s immunity claim, and said she would set a new date “if and when” that matter is resolved.
The disconnect between the expectations set up by the panel’s early moves to expedite the case and the weeks that have now accumulated without a ruling has captured the attention of some legal experts who are closely watching the case.
It has also caught the eye of Mr. Trump’s lawyers, who have been watching from the sidelines with something akin to quiet glee. Each day that passes without a ruling bolsters their strategy of seeking to postpone the trial until after the presidential race is decided.
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“It is surprising, given how quickly they moved to have this appeal briefed and argued, for the court to not yet have issued a decision,” said Stephen I. Vladeck, a University of Texas at Austin law professor who specializes in federal courts. “It’s surprising both just because of how fast they moved and because of the broader timing considerations in this case — both the March 4 trial date and the looming specter of the election.”
It is impossible at this point to gain real insight into what is going on among the members of the panel, which is composed of two judges appointed by President Biden and one placed on the bench by President George H.W. Bush.
The latter judge, Karen L. Henderson, had previously dissented from expediting the immunity appeal and has voted in Mr. Trump’s favor in several previous politically charged cases. As the panel’s senior jurist, Judge Henderson has the authority to write the opinion if she is in the majority. And she faces no deadline to complete the job.
Professor Vladeck said that many people in the legal community had been speculating about what Judge Henderson’s role in the delay might be, though he also noted that no formal rule prevented the other two judges on a panel from moving ahead in issuing a ruling on their own.
While that would be a “breach of judicial decorum,” he said, Judge Henderson’s colleagues — Florence Y. Pan and J. Michelle Childs — could in theory release a decision without her.
One possibility behind the delay is that the panel is deadlocked on the issue of immunity, though that would seem unlikely given that all of three jurists expressed some skepticism about Mr. Trump’s claims at the hearing in Washington last month.
It could also be that the judges agree that Mr. Trump does not enjoy immunity from prosecution but are struggling to reach a consensus on how to frame their decision on one of the most momentous questions about presidential power that courts have considered in years.
Professor Vladeck said the panel would benefit — if only in terms of public opinion — by reaching a unanimous decision both in reasoning and outcome. The virtues of avoiding the appearance of a divided panel, he noted, are likely worth taking “a few extra days — or even a few extra weeks.”
The appeals process began in early December, when Mr. Trump’s lawyers asked the appeals court to reverse Judge Chutkan’s denial of his immunity claims. Judge Chutkan also froze the underlying case, imperiling the trial’s proposed start date.
Even if the immunity issue is resolved in the coming weeks, it is not clear how quickly the case could go to trial. Judge Chutkan has scheduled another trial in her courtroom, which could last a week or so, starting on April 2. And she has hinted in court papers that, in the interest of fairness, she wants to ensure that Mr. Trump’s lawyers get the time to which they are entitled to prepare for trial.
The timing is also likely to be determined by the Supreme Court, assuming one side or the other appeals the ruling of the three-judge panel to the justices.
The Supreme Court could decline to hear the question and allow the appeals court’s ruling to stand — a move that may hold attraction for the justices. They are already embroiled in another politically fraught issue involving Mr. Trump, the question of whether states can disqualify him from the ballot this year for his role in the Jan. 6 assault on the Capitol.
But if the court picks up the immunity appeal, it will have to make the equally important decision about how to fast to move in hearing it.
Depending on the justices’ actions, the election interference case could go to trial in Federal District Court in Washington as early as April or it could be delayed until after the election. If that occurs and Mr. Trump wins, he could ask his Justice Department to throw the charges out. Even if the charges were left in place, the proceedings against him could be frozen for as long as he is in office, under a longstanding Justice Department policy against prosecution a sitting president.
Judge Henderson has generally shown herself to be more willing than some of her colleagues on the appeals court to rule in ways favorable to Mr. Trump.
In November 2019, she was among the dissenters in an 8-to-3 decision by the full appeals court that Mr. Trump’s accounting firm must turn over eight years of his financial records to Congress.
She was also part of a panel that ruled in February 2020 that Mr. Trump’s former White House counsel, Donald F. McGahn II, was immune from being subpoenaed to testify before the House. Several months later, the full court reversed that decision.
And in June 2020, Judge Henderson was part of a panel that ordered a district court judge to immediately dismiss a case against Mr. Trump’s former national security adviser, Michael T. Flynn. That would have blocked the district court judge’s plan to scrutinize the circumstances by which the Trump-era Justice Department sought dismissal of the case even though Mr. Flynn had pleaded guilty. The full appeals court reversed that decision over her objections, too.
In August 2022, Judge Henderson did join a ruling that delivered a setback to Mr. Trump. The decision allowed the House to gain access to Mr. Trump’s tax records. But in a separate opinion, she expressed unease about “Congress’s potential and incentive to threaten a sitting president with a post-presidency” request for tax returns “to influence the president while in office.”
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump. More about Alan Feuer"
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