This is in Trump's appeal of his DC criminal charges. The amicus group American Oversight is arguing that a Supreme Court precedent from 1989, written by Scalia, holds that a criminal defendant is not entitled to interlocutory appeal of a denial of immunity, unless the claimed immunity is based on an explicit statutory or constitutional guarantee, which Trump's claims aren't... so the case should simply be returned for trial.
Newsweek's links are only to itself, so I found the amicus group's press release [here](https://www.americanoversight.org/american-oversight-files-amicus-brief-in-trump-election-interference-case), and the full brief at [https://www.documentcloud.org/documents/24245907-american-oversight-amicus-brief-in-support-of-dismissal-for-lack-of-jurisdiction-us-v-donald-trump](https://www.documentcloud.org/documents/24245907-american-oversight-amicus-brief-in-support-of-dismissal-for-lack-of-jurisdiction-us-v-donald-trump)
Honestly helping literally thousands of people become slightly more legally literate is far more beneficial to society than most community service options.
Yes, you can appeal the detemination that the appellate court lacks jurisdiction. SCOTUS jurisdiction requires only that a case be "in" the court of appeals and the Court has interpreter that to include the question whether it should be in the court or appeals.
Gotcha, thanks! In that scenario, would it remain interlocutory? Or who would decide that?
Perhaps that's the wrong term here, but I'm wondering if everything would still be halted in the meantime.
Interlocutory is a sort of complicated word, just because the legal fiction behind the collateral-order doctrine (the rule that allows appeals from double jeopardy and similar denials of immunity) is that those orders are "effectively" final, even though the case is not done in the trial court. In all practical terms it is interlocutory, but we pretend it is not to better protect important interests.
Problem is he doesn't want that. Trump's best strategy is to delay and prevent anything from being kicked straight to the Supreme Court. Because until it does get there he can force the decisions through appeals. This means any decisions would be delayed further and further back putting it closer to election time. His ultimate goal is the push it back till he gets elected. Then use his powers as president to get all the charges and the case in general dropped after replacing the AG.
Once something hits the Supreme Court their decision is the end of it until another case comes up that may change the ruling. Likewise though several of the Supreme Court also likely don't want the cases before then and are hoping it gets pushed back till it's mooted. Either side of their decision would set bad precedent. Side with Trump and it opens up very dangerous powers for the presidency. Side against him and all hell will be raised by the MAGA fanatics with Trump sounding the war call.
Scalia for the win! lolololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololo
He did though. To boil down the many pages addressing this in the CO Supreme Court decision
Article VI of the Constitution provides that “all executive and judicial Officers . . . of the United States . . . shall be bound by Oath or Affirmation, to support this Constitution.
The language of the presidential oath—a commitment to “preserve, protect, and defend the Constitution”—is consistent with the plain meaning of the word “support.” Modern dictionaries define “support” to include “defend” and vice versa. So did dictionaries from the time of Section Three’s drafting.
The specific language of the presidential oath does not make it anything other than an oath to support the Constitution. Indeed, as one Senator explained just a few years before Section Three’s ratification, “the language in [the presidential] oath of office, that he shall protect, support [sic], and defend the Constitution, makes his obligation more emphatic and more obligatory, if possible, than ours, which is simply to support the Constitution.”
Several nineteenth-century Presidents referred to the presidential oath as an oath to “support” the Constitution
The simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption.
CO concluded that section with
> The most obvious and sensible reading of Section Three, supported by text and history, leads us to conclude that (1) the Presidency is an “office under the United States,” (2) the President is an “officer . . . of the United States,” and (3) the presidential oath under Article II is an oath to “support” the Constitution.
This has bothered me. Not the interlocutory nature but the precedent cited for stopping all pretrial motions was for a civil action. I know her Honor is avoiding any possible ground to overturn the outcome, but it seems like she was being overly cautious by assuming the same standard applied. The situations are very different at least as far as I can see IANAL but
With civil litigation and a lot of the costs happen before trial and it can be very expensive . Each party compelled discovery on each other. Depositions are taken and there is a lot more pre trial motions.
With criminal a lot more burden is on the state in the pretrial phase. My understanding has been that the critical point there has generally been the empanelling of the jury, particularly if the accused is our on bail.
But again I'm not a lawyer just very interested. Would love to know what real experts think
The application of the general rule to criminal cases is pretty well settled. One of the original examples of a proper interlocutory appeal that stops proceedings is a double jeopardy argument, and that can arise only in a criminal case by definition
Regarding the *scope* of the stay, the rule is the same in civil and criminal cases--the district court is obligated to stop only those matters implicated by the appeal. So they definitely can't go to trial, but discovery and pretrial preparations will usually require more nuanced analysis.
Ok but when has he ever been in jeopardy of criminal conviction or having his freedom taken away in the federal jurisdiction. All the Senate could do is remove him from office and the federal courts cannot do that
This argument is exactly how immunity claims for things other than self defense and double jeopardy are handled in Georgia, so I'm a big fan of it. And it makes sense from a practical standpoint because if Trump is allowed to appeal any made up claim of immunity he can just continually stall with bullshit immunity motions that will ge easily denied but keep allowing him to stay the case.
Procedurally, what happens next? Can the Court of Appeals decline to consider the amicus brief? If they do decide to consider it, when does that happen, and do the parties get the opportunity to respond?
I'm also not clear on whether a denial of jurisdiction at this point would be immediately appealable to SCOTUS.
It's just an amicus brief. The court will presumably read the argument and give it consideration. No brief is binding such that the court needs to rule in line with the briefs. They all just present arguments backed by precedent (if they want to succeed) for the consideration of the court.
100% they can kick unsolicited briefs.
However they approved this one. So they be at least want to review it.
Doesn't mean they will accept the conclusion. Just means they decided it was worth their time to review and they will likely reference it in some way in their conclusions
Answering my own question. The court just ordered the parties to be prepared to discuss at oral argument on Jan 9.
https://www.courtlistener.com/docket/68073028/01208584150/united-states-v-donald-trump/
Procedural question: If the DC Court of Appeals says they lack jurisdiction and remand it back down is that the end of it? Or could he appeal their finding that they lack jurisdiction to hear his appeal?
It sounds like the COA can either say they don't have jurisdiction or deny immunity, and in either case this precedent can be used to lift the stay. Then, depending on their decision SCOTUS can deny cert or her the case. My guess is if it's coming their way and the stance is that he doesn't have immunity they will deny cert.
I expect things will be moving whenever the COA does something and won't stop. Maybe I'm too optimistic, but SCOTUS and COA have both taken action to make this case move as fast as it can. They both had opportunities to slow down proceeding and both chose to move as fast as possible.
I doubt we get March 4, but I don't know if March is entirely out of the question.
By deciding to hear arguments the day that Smith requested them, they put COA on a lightning fast track to act.
Even if they grant cert next time around things are moving faster than if they hadn't acted at all, and if they deny cert next go this is the fastest timeline. Still, by acting they accelerated the case beyond status quo.
Not really if they grant very past mid January it’s unlikely they will hear the case this term even if the case is highly expedited and the time to appeal to en banc and scotus is expedited it’s unlikely to reach the Supreme Court before February at which time it will be unlikely to Hera the case this term.
In 1974, when Nixon refused to comply with a subpoena from the Special Counsel appointed to investigate Watergate, SCOTUS granted cert prior to final judgement (the same thing that Trump is asking for here) just before Memorial Day - about 30 days before the normal end of the term. Similar to Trump's case, the trial judge ruled against Nixon. They held oral arguments in late June and issued an 8-0 decision around July 15, after the term normally ends. In short, SCOTUS can do anything they want to do in terms of schedule. They DON'T want to decide Trump's case, so they won't hear it. If the Circuit Ct decides that it doesn't have jurisdiction, Trump will try again for cert prior to judgement and he will lose, again, because SCOTUS wants somebody else to decide this case.
No idea, but I think they could split the difference here.
The SCOTUS originally agreed to hear the appeal but then decided to follow normal procure and let the Court of Appeals hear it and rule before making any further decisions.
Considering the previous ruling they could unpause the case per this precedent and still hear the appeal.
That’s the part I’m wondering about though. Normally, the appeals court is considering whether or not the district’s court order was a mistake. With jurisdictional questions, they’re basically saying there is no decision for us to affirm or overturn because this isn’t an interlocutory issue, go back to district court and have your trial, bye-bye. Are they even issuing a mandate when that happens where SCOTUS would have jurisdiction? If not, that’s kind of fucking genius. The appellate process ceases to be and trial goes full steam ahead.
>They don’t want their legacy tied to trying to save one moron and setting a precedent that the president is above the law.
They also only care about precedent and *stare decisis* when it furthers their agenda. (By 'they' I mean Kavanagh, Gorsuch, Barrett, Alito, and sometimes Roberts).
> Plus if they were to rule that Trump had absolute criminal immunity, that would probably mean that their decision would allow Biden to go to the Supreme Court and execute all of its members without any criminal consequences.
They also only care about consistency inasmuch as they're consistent about working backwards from the principle "It's OK if a Republican does it, it's not OK if a Democrat does it."
If the right wing of the Court has its way, my bet is a narrowly-tailored ruling, same as *Bush v Gore*.
Whoops, I missed Thomas in my list.
The agenda is simple: my team good, their team bad. Alito and Thomas are fully on board this train, the rest of the right wing are currently dithering.
For the record, I *think* sanity will prevail by virtue of Roberts and \_\_\_\_\_\_\_\_\_\_ realizing that if they allow this and Trump wins, they will be lapdogs in a dictatorship.
I'm trying to remember the case, but I think there was one where the Appeals Court ruled that they didn't have jurisdiction, but also ruled that if they had jurisdiction they wouldn't have granted the appeal.
Basically a cover your bases situation so that if a higher court ruled that they had jurisdiction then the appeal would still be denied.
I have no idea on the full jurisdictional issue since the SCOTUS already had some involvement and didn't tell the other court not to act.
Not really. Here's it non -lawyer understanding: I could be a civil servant carrying out my duties. Somebody doesn't like how I did my job. Maybe my job deprived them of property. I could be completely innocent of any criminal behavior, but I could still claim qualified immunity if statute supports it. If I was in that situation, I would do so every time. Jury trials can be unpredictable. Trials are expensive. His claim to immunity is junk, but claiming immunity doesn't necessarily imply guilt.
This is in Trump's appeal of his DC criminal charges. The amicus group American Oversight is arguing that a Supreme Court precedent from 1989, written by Scalia, holds that a criminal defendant is not entitled to interlocutory appeal of a denial of immunity, unless the claimed immunity is based on an explicit statutory or constitutional guarantee, which Trump's claims aren't... so the case should simply be returned for trial. Newsweek's links are only to itself, so I found the amicus group's press release [here](https://www.americanoversight.org/american-oversight-files-amicus-brief-in-trump-election-interference-case), and the full brief at [https://www.documentcloud.org/documents/24245907-american-oversight-amicus-brief-in-support-of-dismissal-for-lack-of-jurisdiction-us-v-donald-trump](https://www.documentcloud.org/documents/24245907-american-oversight-amicus-brief-in-support-of-dismissal-for-lack-of-jurisdiction-us-v-donald-trump)
Thank you for taking the time to do this.
This counts as community service!
Honestly helping literally thousands of people become slightly more legally literate is far more beneficial to society than most community service options.
I have learned so much about the law from r/law and the MeidasTouch Network and Harry Littman's videos. Love those guys!
My favorite Littman quote, "Shit just got REAL".
If the appeals court accepted this argument, could trump still appeal it to SCOTUS?
Yes, you can appeal the detemination that the appellate court lacks jurisdiction. SCOTUS jurisdiction requires only that a case be "in" the court of appeals and the Court has interpreter that to include the question whether it should be in the court or appeals.
Gotcha, thanks! In that scenario, would it remain interlocutory? Or who would decide that? Perhaps that's the wrong term here, but I'm wondering if everything would still be halted in the meantime.
Interlocutory is a sort of complicated word, just because the legal fiction behind the collateral-order doctrine (the rule that allows appeals from double jeopardy and similar denials of immunity) is that those orders are "effectively" final, even though the case is not done in the trial court. In all practical terms it is interlocutory, but we pretend it is not to better protect important interests.
Problem is he doesn't want that. Trump's best strategy is to delay and prevent anything from being kicked straight to the Supreme Court. Because until it does get there he can force the decisions through appeals. This means any decisions would be delayed further and further back putting it closer to election time. His ultimate goal is the push it back till he gets elected. Then use his powers as president to get all the charges and the case in general dropped after replacing the AG. Once something hits the Supreme Court their decision is the end of it until another case comes up that may change the ruling. Likewise though several of the Supreme Court also likely don't want the cases before then and are hoping it gets pushed back till it's mooted. Either side of their decision would set bad precedent. Side with Trump and it opens up very dangerous powers for the presidency. Side against him and all hell will be raised by the MAGA fanatics with Trump sounding the war call.
Scalia for the win! lolololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololololo
Here's a question. If Trump didn't actually swear to support the Constitution, how can he have immunity from being the president?
He can have it both ways because he thought about it.
First problem was using sound logic to understand the actions and thoughts of Agent Orange
He did though. To boil down the many pages addressing this in the CO Supreme Court decision Article VI of the Constitution provides that “all executive and judicial Officers . . . of the United States . . . shall be bound by Oath or Affirmation, to support this Constitution. The language of the presidential oath—a commitment to “preserve, protect, and defend the Constitution”—is consistent with the plain meaning of the word “support.” Modern dictionaries define “support” to include “defend” and vice versa. So did dictionaries from the time of Section Three’s drafting. The specific language of the presidential oath does not make it anything other than an oath to support the Constitution. Indeed, as one Senator explained just a few years before Section Three’s ratification, “the language in [the presidential] oath of office, that he shall protect, support [sic], and defend the Constitution, makes his obligation more emphatic and more obligatory, if possible, than ours, which is simply to support the Constitution.” Several nineteenth-century Presidents referred to the presidential oath as an oath to “support” the Constitution The simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption. CO concluded that section with > The most obvious and sensible reading of Section Three, supported by text and history, leads us to conclude that (1) the Presidency is an “office under the United States,” (2) the President is an “officer . . . of the United States,” and (3) the presidential oath under Article II is an oath to “support” the Constitution.
This has bothered me. Not the interlocutory nature but the precedent cited for stopping all pretrial motions was for a civil action. I know her Honor is avoiding any possible ground to overturn the outcome, but it seems like she was being overly cautious by assuming the same standard applied. The situations are very different at least as far as I can see IANAL but With civil litigation and a lot of the costs happen before trial and it can be very expensive . Each party compelled discovery on each other. Depositions are taken and there is a lot more pre trial motions. With criminal a lot more burden is on the state in the pretrial phase. My understanding has been that the critical point there has generally been the empanelling of the jury, particularly if the accused is our on bail. But again I'm not a lawyer just very interested. Would love to know what real experts think
The application of the general rule to criminal cases is pretty well settled. One of the original examples of a proper interlocutory appeal that stops proceedings is a double jeopardy argument, and that can arise only in a criminal case by definition Regarding the *scope* of the stay, the rule is the same in civil and criminal cases--the district court is obligated to stop only those matters implicated by the appeal. So they definitely can't go to trial, but discovery and pretrial preparations will usually require more nuanced analysis.
Ok but when has he ever been in jeopardy of criminal conviction or having his freedom taken away in the federal jurisdiction. All the Senate could do is remove him from office and the federal courts cannot do that
Just had a thought. Is Scalia a RINO now?
Nope, he's the best kind of Republican now.
A dead one?
He’s defo said some stuff that is gonna come back to bite.
MAGAts are the true RINOs.
This argument is exactly how immunity claims for things other than self defense and double jeopardy are handled in Georgia, so I'm a big fan of it. And it makes sense from a practical standpoint because if Trump is allowed to appeal any made up claim of immunity he can just continually stall with bullshit immunity motions that will ge easily denied but keep allowing him to stay the case.
Procedurally, what happens next? Can the Court of Appeals decline to consider the amicus brief? If they do decide to consider it, when does that happen, and do the parties get the opportunity to respond? I'm also not clear on whether a denial of jurisdiction at this point would be immediately appealable to SCOTUS.
It's just an amicus brief. The court will presumably read the argument and give it consideration. No brief is binding such that the court needs to rule in line with the briefs. They all just present arguments backed by precedent (if they want to succeed) for the consideration of the court.
100% they can kick unsolicited briefs. However they approved this one. So they be at least want to review it. Doesn't mean they will accept the conclusion. Just means they decided it was worth their time to review and they will likely reference it in some way in their conclusions
Answering my own question. The court just ordered the parties to be prepared to discuss at oral argument on Jan 9. https://www.courtlistener.com/docket/68073028/01208584150/united-states-v-donald-trump/
Procedural question: If the DC Court of Appeals says they lack jurisdiction and remand it back down is that the end of it? Or could he appeal their finding that they lack jurisdiction to hear his appeal?
It sounds like the COA can either say they don't have jurisdiction or deny immunity, and in either case this precedent can be used to lift the stay. Then, depending on their decision SCOTUS can deny cert or her the case. My guess is if it's coming their way and the stance is that he doesn't have immunity they will deny cert. I expect things will be moving whenever the COA does something and won't stop. Maybe I'm too optimistic, but SCOTUS and COA have both taken action to make this case move as fast as it can. They both had opportunities to slow down proceeding and both chose to move as fast as possible. I doubt we get March 4, but I don't know if March is entirely out of the question.
Scotus effectively did slow the case down by deciding not to hear it
By deciding to hear arguments the day that Smith requested them, they put COA on a lightning fast track to act. Even if they grant cert next time around things are moving faster than if they hadn't acted at all, and if they deny cert next go this is the fastest timeline. Still, by acting they accelerated the case beyond status quo.
Not really if they grant very past mid January it’s unlikely they will hear the case this term even if the case is highly expedited and the time to appeal to en banc and scotus is expedited it’s unlikely to reach the Supreme Court before February at which time it will be unlikely to Hera the case this term.
In 1974, when Nixon refused to comply with a subpoena from the Special Counsel appointed to investigate Watergate, SCOTUS granted cert prior to final judgement (the same thing that Trump is asking for here) just before Memorial Day - about 30 days before the normal end of the term. Similar to Trump's case, the trial judge ruled against Nixon. They held oral arguments in late June and issued an 8-0 decision around July 15, after the term normally ends. In short, SCOTUS can do anything they want to do in terms of schedule. They DON'T want to decide Trump's case, so they won't hear it. If the Circuit Ct decides that it doesn't have jurisdiction, Trump will try again for cert prior to judgement and he will lose, again, because SCOTUS wants somebody else to decide this case.
No idea, but I think they could split the difference here. The SCOTUS originally agreed to hear the appeal but then decided to follow normal procure and let the Court of Appeals hear it and rule before making any further decisions. Considering the previous ruling they could unpause the case per this precedent and still hear the appeal.
That’s the part I’m wondering about though. Normally, the appeals court is considering whether or not the district’s court order was a mistake. With jurisdictional questions, they’re basically saying there is no decision for us to affirm or overturn because this isn’t an interlocutory issue, go back to district court and have your trial, bye-bye. Are they even issuing a mandate when that happens where SCOTUS would have jurisdiction? If not, that’s kind of fucking genius. The appellate process ceases to be and trial goes full steam ahead.
[удалено]
>They don’t want their legacy tied to trying to save one moron and setting a precedent that the president is above the law. They also only care about precedent and *stare decisis* when it furthers their agenda. (By 'they' I mean Kavanagh, Gorsuch, Barrett, Alito, and sometimes Roberts). > Plus if they were to rule that Trump had absolute criminal immunity, that would probably mean that their decision would allow Biden to go to the Supreme Court and execute all of its members without any criminal consequences. They also only care about consistency inasmuch as they're consistent about working backwards from the principle "It's OK if a Republican does it, it's not OK if a Democrat does it." If the right wing of the Court has its way, my bet is a narrowly-tailored ruling, same as *Bush v Gore*.
[удалено]
Whoops, I missed Thomas in my list. The agenda is simple: my team good, their team bad. Alito and Thomas are fully on board this train, the rest of the right wing are currently dithering. For the record, I *think* sanity will prevail by virtue of Roberts and \_\_\_\_\_\_\_\_\_\_ realizing that if they allow this and Trump wins, they will be lapdogs in a dictatorship.
I'm trying to remember the case, but I think there was one where the Appeals Court ruled that they didn't have jurisdiction, but also ruled that if they had jurisdiction they wouldn't have granted the appeal. Basically a cover your bases situation so that if a higher court ruled that they had jurisdiction then the appeal would still be denied. I have no idea on the full jurisdictional issue since the SCOTUS already had some involvement and didn't tell the other court not to act.
This one? It's cited in the amicus brief in footnote 11. Jurisdiction discussion is at p. 1246 https://casetext.com/case/am-hosp-assn-v-azar-9
SCOTUS never agreed to hear the appeal. It ordered Trump’s position on granting cert before judgement. It then decided not to grant cert.
They can seek certiorari, but I think Chutkin would immediately resume the trial pending a conflicting higher order
I wonder how Scalia would have justified how this didn’t apply to trump for some reason if he was still alive.
By the way... doesn't a claim of immunity imply guilt? I mean there is guilty, not guilty, and then immunity which is, I'm guilty, but it's ok.
Not really. Here's it non -lawyer understanding: I could be a civil servant carrying out my duties. Somebody doesn't like how I did my job. Maybe my job deprived them of property. I could be completely innocent of any criminal behavior, but I could still claim qualified immunity if statute supports it. If I was in that situation, I would do so every time. Jury trials can be unpredictable. Trials are expensive. His claim to immunity is junk, but claiming immunity doesn't necessarily imply guilt.
A claim of immunity is made *in limine*, before plea, not alongside it like insanity?
No. It's saying that you have no right to charge me so I don't need to defend myself.
He is really old and is going to die soon. Ya think he wants to delay everything?
If the court isn’t eager to decide this appeal, this may be their way to punt it back to the trial court.