Why Trump Is Virtually Certain to Appeal the DC Circuit Court’s Newest Ruling

It’s not about substance — it never really was — it’s all about time. Both he and Jack Smith are running out of it.

Gippolito Ndp

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Photo by Aron Visuals on Unsplash

Well, on the issue of Trump’s absolute immunity defense (and related ones appearing in his pre-trial motion to dismiss) the wait is over. Today the DC Circuit (three judge panel) issued its ruling on Trump’s appeal of Judge Chutkan’s trial-level decision.

As I was (and many others were) confident would happen, he lost on every issue. The confidence was based on the very thorough job Judge Chutkan did, and the clarity of the facts and the controlling law.

The three-judge panel has likewise done an exceedingly thorough job — so thorough in fact that two things are fully explained, at least to my mind:

  1. The length of time the DC panel took in issuing its ruling. With the continuing delay, even the usually totally calm Neal Katyal was officially “at the freak out stage.”
  2. Trump’s lawyers know that they can’t prevail on the immunity and related issues … the law and facts are too, too clear. But they’ll keep going anyway.

There are scads of legal nuggets to uncover and discuss in the intermediate appellate court’s ruling — which I’ll get to in time.

For now, I just wanted to opine that it’s not as if Trump and his gang of lawyers believe they are right on the law and the facts — it’s just that any and all risks must be taken, and each and every opportunity for delay be exploited.

So, possibly a request for en banc hearing at the DC Circuit, followed by a petition to SCOTUS. Tick tock, tick tock.

Because if Trump is tried before November, and particularly if he is convicted before November, he’s almost certainly lost his chance to get back into the only office in America from which he can save himself.

That’s really all it was ever about for him, IMHO.

However, the DC Circuit put a little oomph in its ruling, that pretty much ensures Trump will run it up on certiorari to SCOTUS anyway— it gave the deadline of February 12th. The usual timeframe is longer, but Trump does not have that luxury.

So, what the DC Circuit is saying is that if he does not petition for certiorari by the 12th, the case goes right back to Judge Chutkan … and it’s still possible she can get the matter back on track quickly.

That’s the last thing Trump wants — ergo, up to SCOTUS it goes.

Also, we can expect as many “extra-judicial” distractions as possible. He will become ill; more relatives will be ill or dying; he’ll fire attorneys and need time for new ones, etc.

Tick tock, tick tock.

Please take care of yourselves and others and stay strong and healthy.

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Gippolito Ndp

Dad, G-dad, veteran, semi-retired lawyer, archaeologist, writer