The DC Circuit issued a notice that the attorneys in oral arguments for the TFG immunity appeal should be prepared to discuss issues raised in the amicus briefs. TFG filed the appeal of Judge Chutkan's ruling on the immunity issue hoping for the automatic stay for the entire case. Jack Smith agreed that the stay was required and Judge Chutkan put the entire case on hold.
One of the amicus brief has great authority for the concept that in a criminal case, one does not stay the entire case due to a motion like TFG's claim of complete presidential immunity.
Last month, Judge Tanya Chutkan (correctly) rejected Trump’s motions to dismiss special counsel Jack Smith’s grand jury indictment on grounds including that he was immune from prosecution. In turn, Trump brought what’s known as an “interlocutory” appeal — meaning an immediate appeal before a final judgment in the lower court. With the agreement of both sides, Chutkan stayed “any further proceedings that would move this case towards trial or impose additional burdens of litigation” on Trump until the appeal is decided by the D.C. Circuit (and potentially the Supreme Court).....
There is strong Supreme Court precedent indicating that appellate courts do not have jurisdiction to hear Trump’s immunity appeal now. In Midland Asphalt Corp. v. United States, Supreme Court Justice Antonin Scalia, writing for a unanimous court, said that a trial court’s decision is not immediately appealable unless the claim “rests upon an explicit statutory or constitutional guarantee that trial will not occur.” In 2010, future Justice Neil Gorsuch, then a judge on the 10th Circuit Court of Appeals, succinctly encapsulated the Midland Asphalt rule: “Only when a statutory or constitutional provision itself contains a guarantee that a trial will not occur — may courts of appeals intervene prior to a final judgment to review the defendant’s claimed ‘right not to be tried.’”
In Midland Asphalt, the court identified only two constitutional guarantees against trial that had historically been considered explicit enough to warrant interlocutory appeal: the Speech or Debate Clause (unique protections expressly afforded to members of Congress) and the Double Jeopardy Clause of the Fifth Amendment. By contrast, one of the court’s examples of a ruling not subject to interlocutory appeal was the denial of a claim of prosecutorial immunity. Chutkan’s denial of Trump’s claim of presidential immunity should be treated in the same manner.
As a new amicus brief filed by American Oversight argues, Trump’s assertion of presidential immunity rests on no explicit constitutional or statutory guarantee against trial, and so the D.C. Circuit should end the appeal and lift the stay. (One of the authors, Sawyer, is the executive director of American Oversight.) The D.C. Circuit has repeatedly applied Midland Asphalt in dismissing interlocutory appeals of immunity claims, including in a case where a former Cabinet secretary argued that he was immune on “structural separation of powers grounds,” like those that Trump invokes as the basis of his own alleged immunity. ....
Therefore, the D.C. Circuit should find that Trump’s immunity appeal is premature and the trial must commence first, and also, alternatively, that presidential immunity does not exist. Doing so would prevent further unnecessary delay, in the event the Supreme Court believes that an interlocutory appeal is proper here — as there would already be an appellate ruling on the merits for the court to consider.
This issue will be raised in the oral arguments on Tuesday
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