Few appellate court arguments have been more anticipated than the one happening Tuesday in Trump v. United States, where former President Donald Trump will try to convince the U.S. Court of Appeals for the District of Columbia Circuit of his extraordinary claim that former presidents are immune from criminal prosecution for their actions in office. The claim is part of a defense strategy in which Trump is asserting, in essence, that he should not be restricted by general legal constraints and using that assertion to delay (or prevent altogether) the various prosecutions against him, including the federal election conspiracy case giving rise to this particular appeal. The Special Counsel’s thorough brief provides an overwhelming rebuttal of Trump’s claim that he cannot be prosecuted for conspiring to overturn the legitimate result of the 2020 election. Yet the most important part of that brief may not be the compelling catalog of constitutional principles and precedents showing why Trump lacks immunity, but instead a cryptic sentence on the very last page. There, the Special Counsel “respectfully requests the Court to issue the mandate five days after the entry of judgment.”
Whether the court grants the request for a timely issuance of “the mandate” – a seemingly arcane matter of appellate procedure – will play a significant role in determining whether Trump’s run-out-the-clock defense strategy succeeds. The mandate here would be for the DC Circuit, presumably upon ruling in favor of the Special Counsel on the immunity issue, to return the case to the trial court and allow the trial to proceed. As we explain below, the court has ample authority to do that in a timely fashion. Issuing the mandate quickly will not guarantee that the trial schedule stays on track. But it will have the positive effect of preventing weeks from passing for no good cause. Ultimately, if the Supreme Court acquiesces in Trump’s request for delay, the Court will own the choice to prevent timely resolution of this case. That would be understood as a choice to deny American voters important information relevant to their decisions and to intervene in the election to enable one candidate’s strategy of putting a spoke in the wheels of the justice system.
Trump’s Defense Strategy of Delay
Before diving into the Federal Rules of Appellate Procedure and previous Supreme Court guidance on timing, some big picture context. This case, concerning Trump’s efforts to overthrow the results of the 2020 election, has been scheduled for trial in early March. Trump has made no secret of his desire to delay his various criminal trials as long as possible. His goal is to avoid political accountability for what comes from a trial, amplify his claims of election interference, or else put himself in position to try to make the charges go away if he returns to the Oval Office.
Trump’s plan to achieve delay in the federal election conspiracy case is a sophisticated one. It is not to just filibuster through discovery (as in the classified documents case) or engage in drawn out fights about witnesses, evidence, or juror selection. It is to freeze the trial court by taking the case away from it and launching the case through a meandering pre-trial appellate process enabled by various seemingly innocuous rules governing filing deadlines and the passing of jurisdictional batons.
To that end, last October (a full two months after announcing his intention to do so), Trump argued in the trial court that as a former president he is absolutely immune from prosecution for actions he took while in office. Judge Tanya Chutkan rejected that defense in a detailed opinion on December 1. Even though usually appeals do not happen until the end of a criminal case, claims to be altogether immune from prosecution in some situations permit criminal defendants to take an immediate appeal before a trial ever starts. (A compelling brief submitted by watchdog group American Oversight argues that this is not one of those situations.)
Trump’s appeal to the appellate court – the DC Circuit – meant that the case in the trial court was largely frozen. It generally does not make sense to have two courts addressing the same issue at the same time, so once an appeal happens, under Supreme Court precedent, “it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Because Trump is appealing whether he can be prosecuted at all, that leaves the trial in suspense until the appeal is resolved.
In other words, Trump’s delay-by-appeal strategy is working. Since he filed his appeal on December 8, the case has been largely frozen (as confirmed in a “stay order” the trial court issued on December 13), depriving the district court and the prosecution of valuable time to clear procedural hurdles that are necessary before starting a trial.
The DC Circuit appears to recognize the importance of the issues in this appeal and of resolving them with due speed. It set an expedited briefing schedule over the holidays, with oral argument set for Tuesday, January 9. (In contrast, under normal circumstances it can take months or even years from when an appeal is filed until briefs are all submitted and an argument is held.) The speed at which the DC Circuit is moving, and the overwhelming strength of the arguments against immunity, suggest it is likely that the DC Circuit will decide the case quickly – and issue an opinion holding that Trump’s former office does not grant him a get-out-of-trial-free card.
You might think that would be the end of the matter: that if Trump’s appeal is rejected the case goes back to the trial court, the freeze lifts, and we go forward. Not necessarily. This brings us back to that cryptic but important sentence at the end of the government’s brief asking the court to “issue the mandate five days after entry of judgment.”
What Is a Mandate and Why Should It Issue?
When an appellate court decides a case, its decision is not self-executing. For its decision (formally its “judgment”) to go into practical effect, the court must issue a “mandate.” This is nothing fancy – according to the federal appellate rules it can be just a copy of the court’s judgment and opinion and any direction about who pays costs. But it is a necessary step to bring the appeal to a close.
The Special Counsel’s request for a speedy issuance of the mandate speaks to whether or not Trump’s delay strategy can continue on a strange auto-pilot in which there’s no good cause for prolonging the matter. Until the mandate issues, the case remains in the appellate court, so the trial court has no authority to move things forward. And with every passing day, it becomes more likely that Trump’s delay “defense” succeeds.
While the mandate document itself is purely ministerial, the timing of when the appellate court issues the mandate is anything but. The relevant rule (DC Circuit Rule 41(a)(1)) says that the court’s mandate must issue 7 days after the time for asking for rehearing (either by the judges who heard the appeal or the full court) expires and, if filed, 7 days after the petition for rehearing is denied. But it also makes clear the court “retain[s] discretion to direct immediate issuance of its mandate an appropriate case.” The generally applicable federal rule says the appellate court “may shorten or extend the time” to issue a mandate. Another DC Circuit rule says the court may “stay” (or hold off on) issuance of the mandate for up to 90 days, while a general federal rule says a party can ask for a 90 day stay to petition for Supreme Court review.
A little math shows why the government’s request matters. A different rule (DC Circuit Rule 35(a) for those scoring at home) gives 45 days from the judgment to seek rehearing. Adding that to the 7 days in the mandate rule means the mandate would not issue for 52 days even if Trump does not seek rehearing – and, well, given his delay strategy why wouldn’t he petition for rehearing? If he does seek rehearing, it could take many more weeks to resolve that request, all the while the trial court remains frozen. And that does not even include the potential additional delay from Trump asking the Supreme Court to review the case (more on that below) – for which he could have 90 additional days.
The DC Circuit does not have to allow this, though. The rules give it ample discretion to issue the mandate quickly and put the trial back on track – or at the very least deprive Trump of the opportunity to run the legal equivalent of the “prevent defense.” The court should do that. If Trump asks it to stay the mandate to keep sitting on the case and prevent Judge Chutkan from moving forward it should decline to do so. At that point, Trump will be out of options for waiting to seek Supreme Court review, which can be granted or not in accordance with the Supreme Court’s discretion.
The Law Strongly Favors Quickly Issuing the Mandate
The law is on the side of an expeditious mandate, even – and especially – if this case merits Supreme Court review. This is so because longstanding Supreme Court precedent recognizes a strong public interest in speedy criminal trials as a general matter. That interest is heightened here in a case that alleges a former president committed crimes in the service of resisting a peaceful transfer of power following an election he lost. It also involves vital public information (ie, whether Trump is innocent or guilty of federal crimes and the evidence that supports the ultimate conclusion) that the American people have a strong interest in knowing prior to an election in which Trump has chosen to offer himself as a candidate for the office he stands accused of abusing.
The law on speedy trials helps to protect the fair, accurate, and efficient resolution of such cases while respecting defendants’ procedural rights. As the Supreme Court has explained, speedy criminal justice promotes the rule of law by ensuring that violators are brought to justice and setting precedents for accountability that deter future crimes. “Just as delay may impair the ability of the accused to defend himself,” Justice William Brennan wrote in an oft-cited concurring opinion, “so it may reduce the capacity of the government to prove its case. … And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction.” And significantly here, as Justice Brennan further explained, speedy criminal justice also promotes fairness and efficiency by limiting the ability of criminal defendants to frustrate justice through delay and other nefarious actions – such as intimidating witnesses and court personnel, as Trump has shown he is wont to do.
The fact that Trump’s current appeal is interlocutory – ie, in the middle of the case and before trial, as opposed to after trial has concluded as is the usual practice – underscores the imperative for the DC Circuit to quickly return this case to the district court. As American Oversight’s amicus brief details, precisely because of the overall public interest in speedy criminal trials, interlocutory appeals are disfavored in criminal cases and have only rarely been permitted. In fact, American Oversight makes a strong argument that an interlocutory appeal is impermissible in this case because neither the Constitution nor any statute “explicitly” allows it. If that argument is correct, an immediate return of the case is even more warranted. But in any case, when the Supreme Court has permitted interlocutory appeals in criminal cases, it has advised the lower courts to develop procedures for resolving them quickly. Resolving this appeal on an expedited basis and accelerating issuing the mandate perfectly responds to that guidance.
Finally, Trump’s substantive claims on appeal are weak and should be resolved as quickly as possible on that ground alone. Owing in part to the DC Circuit’s own recent unanimous decision – by an ideologically diverse three-judge panel – denying an absolute immunity claim by Trump in a civil case involving January 6th, the DC Circuit will almost certainly affirm the district court in denying Trump’s claim to immunity in this criminal case. (Disclosure: our organization is co-counsel in that civil case.) Doing so would be in line with a growing collection of recent decisions by the Supreme Court and other courts denying that Trump is immune from legal liability or protected by constitutional privileges for actions he took as president – these range from claims of immunity from a defamation suit by a woman Trump was found to have sexually assaulted, immunity from civil suit and subpoenas in state court seeking accountability, and protections from congressional subpoenas concerning January 6th. It would also comport with a recent decision from the conservative Eleventh Circuit Court of Appeals that Trump’s White House chief of staff was not acting in his official capacity when he aided Trump’s attempts to overturn the 2020 election.
As noted, Trump has every right to seek Supreme Court review of the DC Circuit’s decision, but the chances a majority of the Court would hold that a former president has immunity from criminal prosecution and that Trump’s actions in this matter were “official” rather than personal are exceedingly slim. And it is worth noting that the only reason Trump is getting interlocutory review in this case at all is because no other president has caused the courts to decide that the extraordinary immunity he seeks is not available, thus creating the clear precedent that would foreclose the argument he is now making. Trump should not be permitted to take advantage of his own unprecedented conduct to further delay the proceedings.
All of this is to say that the DC Circuit has every reason to put the burden on Trump to move quickly to petition the Supreme Court by issuing the mandate in accordance with the Special Counsel’s request. Any other result under these circumstances would be extraordinary, unjustified, and contrary to the public interest.
If Trump Wants More Delay, He Should Ask For It Now
Trump’s strategy is to delay this case in a manner that is contrary to the approach articulated by the Supreme Court in its jurisprudence on speedy trials and the fair administration of justice. While he should be afforded all the rights our Constitution and legal system provides, the burden should be on him to keep asking courts to help him get away with his plan. The DC Circuit can make sure that is so by accepting the Special Counsel’s invitation to quickly issue the mandate. At a minimum, it should condition any pause of the mandate on Trump seeking Supreme Court review without delay, say within 7 days of its judgment.
A quick return of the mandate will not prejudice Trump. He can still ask the Supreme Court to review his case – and to reimpose a stay (although none is warranted for all the reasons we have explained). But he will have to do so more immediately rather than just waiting passively for the clock until it nearly runs out.
Moreover, in this case, the Special Counsel already asked the Supreme Court to jump in and resolve the issue. Trump opposed it and the Court denied the request. If the Supreme Court wanted to decide the case, or Trump felt they needed to decide it, they both could have acted to make it happen. But having not done that, there is even more reason for Trump to shoulder the burden to ask quickly for the Supreme Court to take and stay the case. There is no reasonable ground for him to get 90 days to do it.
And if the Supreme Court imposes a further stay of the proceedings, the onus will be on the justices to quickly complete their review. This is especially so in light of the other serious matters involving Trump making their way to the Court – including the question of whether Trump is constitutionally disqualified from remaining on the ballot under section 3 of the 14th Amendment, which the Court decided to hear on an expedited schedule just two days after Trump filed a cert petition. It would not be acceptable for the Court to decide a case quickly when doing so benefits Trump and do the opposite when delay is the result he wants – and so obviously harms the public, which has as great an interest in knowing whether candidate Trump is guilty of federal crimes as it has in knowing whether he will be a candidate at all. In the end, the best outcome for our democracy is expeditious resolution of all these legal issues so Americans can make their decisions when their views count the most.
Editor’s note: Updated to reflect the correct timing for seeking en banc review in the DC Circuit.