An appellate court’s decision on Tuesday to reject Donald Trump’s claim that he is protected by presidential immunity from charges in his election subversion case set the stage for the former president to challenge the ruling.
Trump, the leading GOP presidential candidate, immediately indicated in a statement through his campaign that he did indeed plan to appeal the court’s decision.
Trump has two main options to do this, and the case could then travel down a few potential paths once he files his appeal. Below are details about how the case could play out.
The appellate court gives Trump a six-day turnaround
A three-judge panel based in Washington, D.C., gave Trump a fast-approaching deadline of Feb. 12 to file an appeal to its ruling on Tuesday. The judges, two appointees of President Joe Biden and one appointee of former President George H.W. Bush, said their decision to reject Trump’s appeal and send it back to the district court will remain paused until that Feb. 12 deadline.
From there, assuming Trump appeals to the Supreme Court, his first move would be to ask the high court to keep the case paused, or “stayed,” while he files his presidential immunity argument in the form of a petition to the court. The three-judge panel said if Trump requests a stay from the Supreme Court, the panel’s decision would then automatically remain paused until the high court responds to Trump’s request.
However, the panel also added a stipulation that if Trump takes the other route that is typical during appeals processes and asks the appellate court’s full bench to rehear Trump’s argument, the case would resume at the district court level.
In other words, special counsel Jack Smith’s case against Trump would proceed in court under the purview of Judge Tanya Chutkan, even as the appellate court considers Trump’s request that the full bench of appellate judges rehear his presidential immunity arguments — if Trump does not go directly to the Supreme Court.
By warning Trump that seeking a review from the appellate court’s full bench would cause the case to resume, the panel effectively deterred Trump from opting for it, as Trump has sought to delay this case and his three other criminal cases until after the 2024 election.
Josh Blackman, a professor at South Texas College of Law, said discouraging Trump from that option is an indication that all of the judges on Washington’s appellate court bench agreed with the three-judge panel.
“They wouldn’t cut out their colleagues like that without checking with them first. So, I think it’s understood that en banc [a full bench review in the appellate court] would not be granted,” Blackman said.
Some right-leaning attorneys said cutting out the en banc option was driven by politics and is atypical.
“They are trying to speed up the trial rather than afford en banc review by denying a stay. The courts are increasingly failing our constitutional government and endangering our democracy,” attorney Robert Barnes said.
Attorney William Shipley, who has represented Jan. 6 defendants, observed in a statement on social media that “ordinary rules” do not seem to apply to Trump.
“Rather than follow the rules as written and typically applied, they give Trump only 6 days to seek a stay from the SCOTUS, and they state that — unlike every other case — filing a motion for rehearing won’t delay [district court proceedings],” Shipley wrote.
Trump could appeal to the Supreme Court
Trump’s appeal to the Supreme Court would come in the form of an application for the justices to grant Trump an emergency stay in the case. Trump would then follow that with a petition to the high court to reconsider the three-judge panel’s decision.
A majority of the Supreme Court’s justices, at least five, must agree to grant Trump a stay. If the justices grant a stay with no time limitations, as George Washington University professor Jonathan Turley lays out, the case could be delayed for months.
If the justices grant a stay that lasts a finite number of days, Trump and Smith would be working on a tighter time frame. The Supreme Court could, in that instance, decide whether to take up Trump’s petition in a matter of a few weeks.
If the Supreme Court declined to take up the case, then the case would resume at the district court level immediately. If the court decided to consider the case, however, it could take a few months to come to a decision.
And if the court ruled in favor of Trump’s argument, the case would be dismissed entirely. If the court ruled against it, the case would resume once the ruling was issued.
Trump could ask the full appellate court to rehear his appeal
Trump could ask Washington’s appellate court to rehear his appeal. This would require the full bench of 11 judges to decide whether to take up Trump’s case rather than the panel of three who issued the ruling Tuesday against his immunity claim.
However, because this would cause the case to resume at the lower court level, Trump does not benefit at all from this option.
Trial schedule remains in limbo
Trump’s trial in Washington was scheduled to begin March 4, but Chutkan scrapped that from the court schedule once the appeals process made it logistically impossible to adhere to that date.
The three-judge panel drew scrutiny from some for taking nearly two months to release a ruling on Trump’s presidential immunity argument.
Assuming Trump takes his appeal next to the Supreme Court, the high court could then take several months to weigh the same presidential immunity argument.
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If, however, the Supreme Court declined to take up Trump’s petition, the case would resume at the district court level by as early as the end of February, setting up a spring trial between Trump and Smith.
If the high court decided to consider Trump’s petition and rejected Trump’s presidential immunity claim, the trial could be pushed into late summer.
Kaelan Deese contributed to this report.
