The truth about the federal appeals court’s order.
The truth about the federal appeals court’s order.
Editor’s Note: This is the first of a two-column series on the timing issues arising out of Tuesday’s D.C. Circuit Court of Appeals ruling denying former president Donald Trump’s claim of immunity from criminal prosecution in connection with the federal election-interference indictment. The series will conclude with a second column on Saturday.
I n my post Tuesday night, I tried to explain the one-page order the D.C. Circuit federal appeals court issued in conjunction with yesterday’s 57-page opinion denying former president Trump’s immunity claim. The order involved the timing of what’s known as the issuance of the “mandate” — basically, the court’s formal decision. The mandate conveys jurisdiction back to the District Court (where Judge Tanya Chutkan is presiding), which, in turn, must apply the Circuit’s ruling.
My post addressed how the Circuit is grappling with Trump’s strategy of delay — here, by nudging him into an expeditious appeal to the Supreme Court. There is much misunderstanding about this.
Right now, Judge Chutkan is not allowed to act on the case because the Circuit has jurisdiction. Meanwhile, Trump could try to string appeals out for over three months. Hence, the common misconception: Many people, especially Trump supporters, seem to believe that as long as the law allows him to play out his appeal, the case automatically stays frozen in the trial court, preventing Chutkan from moving through the many weeks of pre-trial litigation that would be necessary to start the trial. As we’ll further address below, that’s not how it works.
Moreover, if Trump is ever going to prevail on his immunity claim — highly doubtful — it would have to be in the Supreme Court. What the Circuit has done is nudge him to move the case there quickly. But the Circuit’s order is not all stick; there’s an important carrot, too: If he appeals expeditiously, the Circuit will exercise its discretion to keep the freeze on the trial court in place. That doesn’t penalize Trump; it helps him.
In this first of two columns, I will address two aspects of the immunity ruling’s impact on the timing of the impending federal election-interference prosecution of Trump: exactly what the Circuit panel has done with respect to timing and whether it has the authority to manipulate the schedule this way. In a second column, to be published on Saturday, I will take up a third issue: Assuming the Circuit has the authority to manipulate the schedule (spoiler alert: it does), did it exercise that authority for judicially appropriate reasons?
What the Circuit Panel’s One-Page Order Does
The panel’s order gives Trump until Monday, February 12, to file an expedited appeal to the Supreme Court (i.e., a petition for a writ of certiorari, seeking review of the panel decision). If the former president fails to appeal by Monday, the panel directs that the mandate be issued, returning the case to Judge Chutkan. If he appeals to the Supreme Court by Monday, the mandate will be withheld, meaning Judge Chutkan will still lack authority to act on the case until such time as the Supreme Court weighs in (i.e., if it declines to hear the appeal, the case will be returned to Chutkan; if it grants the appeal, jurisdiction will remain with the Supreme Court until the appeal is decided — probably next year).
The immediate objective of the panel’s order is to discourage Trump from filing a motion for rehearing en banc. Such motions are rarely granted and one clearly would be futile in this instance. The court’s ruling is thorough and sound. To the extent partisanship may factor in, the unanimous panel was composed of two Democratic appointees and one Republican appointee, and the eleven-judge Circuit skews Democratic, 7–4. In my view, the Circuit would heavily, if not unanimously, reject any request for rehearing.
The panel directed that if Trump makes such a motion, the Circuit will not withhold the mandate — i.e., the case will be returned to Judge Chutkan, who will be authorized to act on it.
Clearly, the Circuit is also discouraging Trump from taking all the time the law permits for an appeal; but it is doing so by offering to withhold its mandate rather than immediately transfer the case back to Judge Chutkan. And to be clear, the Circuit has not reduced the time the law gives Trump to appeal to the Supreme Court, nor could it.
Does the Panel Have Authority to Do This?
The Circuit panel undoubtedly has authority to try to nudge the former president into an expeditious appeal to the Supreme Court. (Again, whether it should do so is a separate question I’ll take up on Saturday.) To the extent Trump’s supporters are outraged, there are two problems with their objections: (a) They are conflating the issuance of the mandate with the rules governing the timing of appellate submissions, and (b) they are misconstruing the proper purpose of appeal.
The Federal Rules of Appellate Procedure give a party in a criminal case 14 days to seek a rehearing by either the same three-judge panel (which would be pointless) or the full court (en banc). (See Rule 35(c) and Rule 40(a)(1).) The Supreme Court rules give a party 90 days to appeal. (See Rule 13.1, here on p. 9.)
A Circuit panel has no power to change these rules. Trump has 14 days to seek rehearing en banc from the Circuit and 90 days to appeal to the Supreme Court. The one-page order does not — indeed, could not — change that.
Nevertheless, what the Circuit panel does have power over is the issuance of its mandate. Appellate Procedure Rule 41(b) presumptively requires the mandate of a ruling to be issued seven days after either of the following: (1) the 14-day time for filing a motion for rehearing en banc expires, if no such motion is filed; or (2) the denial of such a motion, if one has been timely filed. Importantly, however, Rule 41(b) caveats that “the court may shorten or extend the time by order” (emphasis added). That is, the rule empowers a Circuit panel to ignore the seven-day presumption and issue the mandate earlier or later, at its discretion. That is what the Circuit panel’s one-page order has done.
To the extent Trump supporters are angry that the panel has decided to issue its mandate earlier if Trump fails to appeal expeditiously (by Monday), they are missing an important piece of this equation: The filing of an appeal to the Supreme Court does not automatically stay the issuance of a mandate.
Under Rule 41(d), a party must ask the Circuit to delay issuance of the mandate while the party appeals to the Supreme Court. The Circuit need not grant that application unless it is convinced that there is “good cause” — basically, that the case presents “a substantial question.” The Circuit is free to deny the request — leaving the party in the uphill position of having to convince the Supreme Court to stay the Circuit’s mandate after the Circuit itself has declined to do so.
This gets to the second problem with the grousing by Trump supporters. Politically speaking, delay is a good strategy for Trump, but legally speaking, it is not good cause for staying a mandate.
The fact that Trump wants to string out the proceedings for as long as possible does not create “a substantial question” of law for the Supreme Court. A substantial question would be: Should a former president have immunity from criminal prosecution for acts taken as president that were arguably within the ambit of his executive authority? For that, it would be worth staying the mandate. But it would be worth staying the mandate now. It is not a requirement, nor would it be good practice, for the Circuit to delay the formal issuance of its ruling while Trump sat on his hands for three and a half months before finally seeking Supreme Court review. That is precisely why the rule does not require the Circuit to delay issuance of the mandate every time a party wants to appeal to the Supreme Court — you have to show you’ve got a weighty issue; a desire to stall doesn’t cut it.
Here, then, the panel actually gave Trump a benefit. It conditionally granted him his coveted objective of having the mandate withheld — i.e., of continuing the freeze on pre-trial proceedings before Judge Chutkan. The panel did not require Trump to convince the Circuit that the mandate should be stayed. But it did impose a condition on this exercise of discretion in his favor: He must file his Supreme Court appeal by Monday. If he doesn’t, the Circuit panel will issue the mandate, under its Rule 41(b) authority, allowing Judge Chutkan to proceed with pre-trial litigation.
Bottom line: Trump has not been denied any of his appellate rights. He still has 14 days to seek rehearing en banc from the Circuit if that’s what he wants to do. He still has 90 days to appeal to the Supreme Court, with or without seeking rehearing en banc. But if he wants the Circuit to stay issuance of the mandate — which it doesn’t have to do — the Circuit has agreed to do so provided that he forgoes a petition for rehearing en banc and appeals to the Supreme Court by Monday.
The Circuit’s directive is undoubtedly lawful, but was it appropriate? I’ll address that question on Saturday.