Fancy Juggling: The Appeals Court Drops a Potato into John Roberts’ Lap While It’s Still Hot

As recently as this past Monday, many news outlets were outraged at the elephantine pace at which the District of Columbia Court of Appeals’ three-judge panel seemed to be moving in handing down a decision regarding Donald Trump’s claim that a president enjoyed permanent immunity from prosecution for any crime, including sexual assault, which he has already bragged about doing, and murder, which he hasn’t gotten to yet but might in the future.

How could they fail to be aware, columnists lamented, me among them, that Trump didn’t care whether he prevailed in such a ludicrous appeal but was simply once again dragging out the process until it either withered away or he could end the prosecution from the Oval Office?  The three judges were playing into his hands by hewing to the niceties of procedure rather than considering the larger issue—survival of the rule of law.

Trump must have been sitting back, smug as ever, congratulating himself on once more outwitting a judicial system that was supposedly built on fairness.  Roy Cohn would have been proud.

Except he did not outwit it.  In a brilliant bit of misdirection, the judges—one white, one Black, one Asian, and all women—gulled both Trump and the nation and then pivoted and dropped the hammer on him, both in the decision’s content and its timing.

Few Constitutional law scholars, beyond perhaps John Eastman, expected the judges to uphold Trump’s appeal, although some on the right may have held out some small hope that the conservative among the three would either dissent or issue an anemic concurrence.  She did not.  In a single opinion, which was issued without attribution, they lambasted not only Trump’s legal arguments, but also Trump himself.  Without actually calling him guilty of the crimes with which he has been charged, the opinion was worded to imply that he was.

“We cannot accept former President Trump's claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power, the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”

The language was so strong that it left no daylight for a sympathetic reviewer to employ linguistic gymnastics to alter the interpretation.  The only way to counter what the judges wrote was to come out and say they were wrong—which every person on the appeal’s next stop, the Supreme Court, knows they were not.

The judges also skewered Trump’s planned next move, an en banc review by the entire appeals court, by refusing to stay their ruling if such a review were requested.  The only way Trump can stop the clock now is to submit an emergency petition to the Supreme Court—and the court gave him only six days to do it, until Lincoln’s birthday.  (One likes to think the three judges fully appreciated the irony.)

Trump’s lawyers will undoubtedly produce such a petition, and its first stop will be the justice who oversees the DC circuit, Chief Justice John Roberts.  If the court of appeals’ decision were weak, contested, or lacked definition, Roberts could simply impose a stay while he reviewed Trump’s emergency motion, sit on his hands for a while, pretending to consider the merits, and then agree to allow Trump’s lawyers to submit another petition to have the actual case heard.  (Roberts is also empowered to deny the motion himself, thus ending the charade, but Profiles in Courage he ain’t.)   He can also defer responsibility and ask the full Court to rule on the petition with five of the nine justices required to concur, which they are likely to do if asked.

Assuming the emergency stay is granted, Trump’s lawyers would ordinarily have 90 days to file an application to have the case heard.  The Court would then begin the process of reviewing their grounds and deciding whether to accept the appeal, after which they would request briefs, schedule oral arguments, spend a few months traveling in Clarence Thomas’s RV, and then, hoping no one will notice, issue a decision, perhaps in 2030.

But the appeals court decision was not weak, contested, or lacking definition, and allowing the case to drag on until the justices are off the hook has gotten a lot dicier. 

The mechanics of the process allow for a good deal of latitude in the timing.  With Roberts now under enormous pressure not to allow his Court to appear as Trump’s handmaiden, he will likely rule that Trump has only a limited number of days to file the actual application—perhaps as little as a week or two—before the emergency stay expires and the case is returned to Judge Chutkan.

Then the Court will have to decide whether to hear the full case.  Up until now, it has been a given that they would and, while that is still likely, it is not impossible that the justices will decide to slither past the issue and let the current, quite definitive decision stand. 

If they do agree to hear it, they will have to decide how much time to give the lawyers to file their briefs, something of a hollow exercise since the record is already quite complete, and then schedule oral arguments.  Here again, Roberts cannot protract the process excessively without appearing to abdicate his role as steward of an independent branch of government.  (He has another option.  The Court could bypass the emergency process entirely and use the stay to immediately set a schedule for hearing the case, which would get it to trial faster.)

While all this seems rather serpentine, these are the very twists and turns that Trump has long employed to contort the legal system. Three unfairly maligned judges just made that a whole lot more difficult.

It gets worse for Roberts. While immunity might be his Scylla, Charybdis is looming. Oral arguments on Section 3 of the 14^th Amendment are up next.