Court Expedites Trump Presidential Immunity Appeal

The defense and prosecution clashed over an expedited schedule in court filings.

Former President Donald Trump leaves the courtroom during a break in the civil fraud trial against the Trump Organization at the New York Supreme Court in New York on Dec. 7, 2023. Timothy A. Clary/AFP via Getty Images

The U.S. Court of Appeals for the D.C. Circuit is expediting former President Trump’s appeal on a district court denial of his motion to dismiss his case based on presidential immunity.

President Trump has until Dec. 23 to file his opening brief, and prosecutors have until Dec. 30 to file a response. The defense can file any reply to that by Jan. 2, 2024.

Earlier that day, both the prosecution and defense filed motioned arguing for and against an expedited schedule.

Attorneys for former President Donald Trump accused special counsel Jack Smith’s office of election interference in a new appeals court filing.

“The prosecution has one goal in this case: To unlawfully attempt to try, convict, and sentence President Trump before an election in which he is likely to defeat President Biden,” they wrote in response to the special counsel’s request to expedite President Trump’s appeal so that the case can go to trial on March 4, 2024.

“This represents a blatant attempt to interfere with the 2024 presidential election and to disenfranchise the tens of millions of voters who support President Trump’s candidacy.”

Prosecutors replied in a court filing just hours later, arguing that President Trump’s team has offered no legal arguments for why the appeals court should not proceed on an expedited schedule.

“Any further delay in this case would ‘entail serious costs to the judicial system,’” prosecutors argued.

This week, the prosecutors have already asked three separate courts to affirm a March 4 trial date. Prosecutors are arguing that it’s in the interest of the public to settle this case quickly, as it pertains to issues “at the heart of our democracy.”

Defense attorneys argue that this is an improper rushing of proceedings.

The moves in the various jurisdictions were made after President Trump changed the playing field last week by taking the case to the appellate court, which was made possible by a denial of a motion to dismiss based on “presidential immunity” in the district court.

The appeal was likely to pause proceedings in the district court, and if it isn’t heard on an expedited schedule, that could significantly delay the case’s pretrial schedule in the district court, ultimately pushing back the March 4 trial date.

Defense attorneys have noted in previous court filings that they would prefer a court date after 2024. However, if President Trump were reelected in 2024, it’s unlikely he would stand trial at all.

Due Process Versus Speedy Trial

Although the defense and prosecution have clashed over the trial timeline since the beginning of the case, defense attorneys are now arguing that the prosecution has shown its hand and the motives behind their many requests for a specific March 4 trial date.

They are arguing that the prosecution investigated for more than two years before finally bringing charges during President Trump’s campaign and ever since have been seeking to speed things up. The defense has made repeated requests for more time to review documents and obtain discovery materials.

Under the current schedule, jury selection is imminent. Defense attorneys argue that in the meantime, they have yet to finish reviewing the 13 million pages they’ve received and make follow-up requests.

Defense attorneys argue that this infringes on President Trump’s due process rights. Prosecutors argue that the schedule is necessary to preserve the people’s right to a speedy trial.

“Expediting the appeal in this case is necessary to vindicate the public’s interest in a timely trial,” they wrote in the Dec. 13 filing.

Prosecutors pushed back on the argument that an expedited schedule would somehow prevent the court from giving the appeal “due consideration.”

They pointed out that the issue at hand has been argued at length in the district court, that both sides have submitted dozens of pages of arguments on the motion to dismiss based on presidential immunity, and that defense counsel had publicly spoken about using a presidential immunity defense long before they filed a motion on the matter. Both sides are ready to argue the appeal, prosecutors wrote.

Presidential Immunity

Defense attorneys also argue that prosecutors have inaccurately framed the nature of the appeal.

“This appeal presents novel, complex, and sensitive questions of profound importance,” the new filing reads.

Defense attorneys are arguing that President Trump’s actions to investigate alleged election fraud were done as the sitting president and that his track record shows that he has always given such allegations due attention.

In a recent petition to the Supreme Court, prosecutors framed the issue as whether a former president can be prosecuted for criminal acts he undertook while in office, which isn’t covered by the presidential immunity once outlined by the high court.

Special counsel Jack Smith speaks in Washington. He has accused former President Donald Trump of trying to overturn the 2020 election, filing four felony counts against him on Aug. 1, 2023. Drew Angerer/Getty Images

Defense attorneys argue that their appeal on the motion to dismiss based on presidential immunity is a question of whether a former president can be criminally prosecuted for official acts as president.

The issue “goes to the core of our system of separated powers and will stand among the most consequential questions ever decided by this Court” and requires “deliberate consideration,” they argued.

They present a series of hypotheticals in which a ruling against them would open up other former presidents to criminal prosecution, such as:

“Could President Obama be charged with murder for allegedly authorizing the drone strike that killed Anwar Al-Awlaki and his 16-year-old son, both U.S. citizens?”

“Could President John Quincy Adams have been indicted and imprisoned for the ‘corrupt bargain’ of appointing Henry Clay as his Secretary of State?”

Why March 4?

The defense noted that circuit courts “rarely” grant expedited rulings unless the public has an “unusual interest” that requires it.

They also argued that even if they expedite the case, it shouldn’t be on the prosecution’s proposed schedule, which would require an opening brief 10 days after the court gives the order and would make court staff work throughout the upcoming holidays.

The prosecutors have argued that there is a strong public interest to try the case quickly; defense attorneys argue the opposite, saying prosecutors haven’t shown why March 4 is such an important date.

“The prosecution does not explain why it is ‘imperative’ that the trial begin on that date or describe what irreparable injury will occur if it does not. The date of March 4, 2024, has no talismanic significance,” they wrote.

Often left unsaid by the prosecution is that March 4 is just one day before more than a dozen states hold their Republican primaries, known as Super Tuesday.

Over the past year, President Trump’s poll figures and fundraising have seen an uptick with every significant legal action against him, such as any of the four indictments or the taking of his mugshot—the first presidential mugshot in American history.

The defense also argues that it’s against the public interest to stick to a March 4 trial date when proceedings in the appeals court will be ongoing. Expediting the appeal would be a violation of due process, they claim, and would further push the “partisan” perception of the case in the public’s eye.

They further note that there may be First Amendment violations because President Trump will almost certainly be the Republican Party’s nominee. The case’s timing would deprive the public of some opportunities to hear him speak about his platform.

In the prosecution’s latest court filing, they argued that District Judge Tanya Chutkan has upheld the March 4 trial date after several of President Trump’s attempts to delay it, thus emphasizing the importance of taking the case to trial quickly.

“Both the district court and this Court have recognized a compelling interest in promptly moving this case to trial. As this Court recently observed, the defendant ‘has repeatedly asked to push back the trial date in this case,’ requests that the district court has repeatedly ‘considered and denied,’” they wrote.

Prosecutors countered the argument that their proposed schedule would require working through the holidays: “If the Court today enters a briefing order consistent with the Government’s request, the defendant’s brief would be due no later than December 23.”

“In any event, the public’s need for a speedy resolution of these important legal issues take precedence over personal scheduling issues,” the filing reads. “The parties and the judicial system are fully capable of moving with the swiftness required.”

“The Government stands ready to respond within seven days of the defendant’s opening brief. The reply deadline and any oral argument should be scheduled promptly thereafter.”

In the Supreme Court, President Trump has until Dec. 20 to file a response to the special counsel’s request and petition. It isn’t yet clear when the high court could issue a review.