Editor’s note: This article has been updated following the DC Circuit ruling on February 6 2024. The updated analysis is: here.
This essay provides an overview of the potential procedural pathways for former President Donald Trump’s ongoing appeal of his federal prosecution for election interference by Special Counsel Jack Smith. It describes the timelines for the DC Circuit Court of Appeals panel, a potential rehearing by the full DC Circuit, and possible Supreme Court review if cert is denied or granted. The most likely time horizons for the resolution of the appeal range from several weeks (February) to about four and a half months (middle of May), although longer delays are possible. With approximately three months of pre-trial proceedings still remaining, measuring from the point at which the stay of the trial was entered, that would result in the trial commencing between May and August. The trial itself is expected to take approximately 8-12 weeks.
Our analysis is based on the assumption that Trump will lose before the courts, given the weaknesses of his argument for immunity, and the question is how long it will take the judicial system to reach that final conclusion.
Oral argument in the DC Circuit is taking place on the morning of Tuesday, Jan. 9. The timeframe of potential outcomes at the panel level depends, in part, on how the court rules. If the court were to deny jurisdiction over the entire appeal, they could do so as soon as the same day as oral argument or shortly thereafter. If the panel releases a decision on the merits, we expect the panel may issue a merits decision somewhere in the range of Jan. 12 and Jan. 19. Those two dates are Fridays, and we think they establish a natural deadline here; in other words, if the panel is aiming to do something very fast, it may target that first Friday, and in any event likely will not want to go beyond the second one. That being said, these are just estimates based on our experience – and it might be sooner or later.
The panel will likely make one of three threshold jurisdictional decisions, each of which potentially alters the timeline:
- The DC Circuit decides that an interlocutory appeal was not appropriate here under the Midland Asphalt case, which forbids interlocutory appeal except in certain specified situations – arguably not here present – and declines to reach the merits.
- The DC Circuit panel accepts the view of the parties that there is interlocutory jurisdiction and proceeds to the merits of whether or not Trump has immunity.
- The DC Circuit decides that an interlocutory appeal was not appropriate here – but proceeds to the merits as well. Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1246 (D.C. Cir. 2020) (citing Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007)) (“The law of our circuit allows a court to assume hypothetical statutory jurisdiction even if we cannot [so] assume Article III jurisdiction.”).
Under Option 1, the panel could issue an opinion as early as Tuesday afternoon (Jan. 9), but given the weight of the questions presented, it is likely the court could take up to several days to write a short, reasoned opinion explaining their jurisdictional decision. If the panel were to rule it did not have jurisdiction over the entire appeal, it is possible that the panel will order that the mandate be issued immediately. However, DOJ requested the mandate issue five days after the panel issues its decision, and we believe it is unlikely the panel would adopt a faster pace than requested. That said, the five days was predicated on the assumption the panel reaches the merits, not that the panel decides it should never have had jurisdiction which it might well do.
Under Options 2 and 3, the panel would release a decision on the merits of Trump’s appeal. Doing so will probably take them between one to two weeks. Assuming that predicted timeline is correct, we anticipate the panel’s decision would probably be released by Friday, Jan. 19. For the purposes of projecting dates, we will assume the DC Circuit has issued its ruling on Jan. 19, in order to capture the later end of the possible time ranges.
(As discussed further below, we think Option 1 is unlikely because of the risk of delay attendant upon only addressing jurisdiction and not reaching the merits. Should the Supreme Court disagree and send the matter back for reconsideration, that would make trial difficult or impossible in 2024. The DC Circuit has made its interest in expedition clear by placing this matter on a rocket docket.)
After the DC Circuit panel issues its ruling, the court issues a “mandate” that serves as the procedural step sending the case back to the trial court. Whenever the mandate is issued, the stay automatically lifts. When that happens, Trump will have to take further action to secure a new stay pending further appellate proceedings in the en banc court or the Supreme Court.
Trump’s maneuvers will depend on how the DC Circuit panel handles the issuance of the mandate. There are two possibilities: (i) that the panel does not issue an order regarding the mandate with its ruling; (ii) that the panel does issue an order regarding the mandate with its ruling.
If the panel does not issue an order relating to an accelerated issuance of the mandate, then the issuance of the mandate would be governed by the default rules in the Federal Rules of Appellate Procedure and the DC Circuit’s local rules. Under those default rules, the mandate issues 7 days after the time for filing a petition for rehearing en banc expires. Trump will have 30 days to file a petition for rehearing en banc. Circuit Rule 35(a). (That would be, at the latest, Feb. 18.) If he does so, then the automatic stay of the issuance of the mandate will be extended – that stay will dissolve and the mandate must be issued “7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later.” FRAP 41(b). Because petitioning for rehearing en banc automatically extends when the mandate issues, Trump has every incentive to file such a petition even though the likelihood of it being granted is very low. Once Trump petitions for rehearing en banc, any active judge can issue an order calling for a response – we expect that to happen quickly, and for Smith to respond with equal expedition, perhaps even the same day. Given the expeditious nature with which the DC Circuit has handled the immunity appeal, the composition of the circuit, and the exceptionally rare frequency of en banc proceedings in the DC Circuit, we expect that the DC Circuit will likely deny Trump’s petition for rehearing en banc – and will do so in days and almost certainly within a week. Accordingly, under the default rules, the process of petitioning for rehearing en banc would take about six weeks during which an automatic stay would be in place. (That takes us to about March 1.) After the DC Circuit denies the petition for rehearing en banc, Trump would seek cert at the Supreme Court along with a stay of the district court proceedings. (That process is described below.)
If the panel does issue an order governing the mandate, then the process could go much faster. Smith asked the panel to issue the mandate only five days after the court renders its decision. The panel has discretion to handle the stay of the mandate however it wishes – and it likely will follow Smith’s request in speeding up the time in which the mandate will be issued. Circuit Rule 41(a)(1). Although the panel could allow for slightly longer than five days to stay the issuance of the mandate, we think they will be inclined to follow the expedited approach Smith requested – which would be consistent with their handling of the appeal up to this point. In the interests of simplicity, in the following scenarios we will assume that the panel orders the mandate to issue after five days; but we believe it is possible that they could stay the mandate for around ten days. We do not believe they will delay the issuance of the mandate much longer than that.
The structure of the panel’s order regarding the mandate makes a significant difference in how subsequent proceedings play out. First, the panel could simply rule that the mandate will issue five days after its judgment regardless whether a petition for rehearing en banc or a cert petition is filed. If so, Trump will not have an incentive to petition for rehearing en banc because the delay occasioned by the petition would not be accompanied by a stay. As a result, in this case he will file a petition for cert with the Supreme Court within those five days (by Jan. 24), and a motion before the DC Circuit panel to stay the issuance of the mandate pending the resolution of the cert petition or final disposition at the Supreme Court. FRAP 41(d)(1) (“A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court.”) If the DC Circuit denies the motion for a stay, Trump will file an emergency application for a stay at the Supreme Court, which will probably be granted in some fashion. That motion will be handled by the Circuit Justice, Chief Justice Roberts, who would have three options: (1) deny the motion himself (which we believe will not happen); (2) refer it to the full Court to act on, without acting on it himself; or (3) impose an administrative stay while the Court reviews the cert petition. Supreme Court Rule 23(2) and 22(5). The administrative stay is the most likely. Ultimately, a majority of the Justices (at least five) must vote to resolve the stay issue, pursuant to the Supreme Court’s well-known internal procedures. See Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court’s Emergency Stays, 44 Harv. J.L. & Social Policy 3 (2021). That will probably take anywhere from one to a few days at most. If they grant an administrative stay, it would remain in place throughout the disposition of Trump’s appeal to the Supreme Court: If the Court denies cert, that is the end of the process; if it grants cert, the stay would be in place until the Court ultimately rules. FRAP 41(d)(2)(ii). If the DC Circuit panel rules on the merits of Trump’s appeal, this approach to staying the mandate will likely occasion the least delay.
But the DC Circuit could also structure the mandate so that its issuance is stayed for five days after its ruling or the disposition of a petition for rehearing en banc and/or cert petition, whichever is later. This approach would track the default rule outlined in Circuit Rule 41: “While retaining discretion to direct immediate issuance of its mandate in an appropriate case, the court ordinarily will include as part of its disposition an instruction that the clerk withhold issuance of the mandate until 7 days after the expiration of the time for filing a petition for rehearing or a petition for rehearing en banc and, if such petition is timely filed, until 7 days after disposition thereof.” If the panel includes this language, Trump will be incentivized to seek en banc review, since the mandate would be stayed until the en banc court disposes of Trump’s en banc petition. Under this scenario, he will probably take advantage of that opportunity and petition the DC Circuit for en banc review – which, as explained above, would take no more than a week to be resolved. As indicated, the DC Circuit will in all likelihood deny rehearing en banc; once they do so, Trump will file a motion under FRAP 41(d)(1) to stay the mandate pending the petition for writ of cert to the Supreme Court. (That would take us up to Feb. 3.) Accordingly, the ultimate difference between the two structures of the panel’s order regarding the mandate is the full time it takes to brief and decide the en banc petition, which could be as much as 10 days. This tracks the same amount of time that briefing lasted between Jack Smith’s petition for cert before judgment and the Supreme Court’s denial of cert.
Therefore, under either of these two approaches, Trump will ultimately seek cert at the Supreme Court – and move for a stay, which he will likely receive. We should also note that the Special Counsel is likely to take every opportunity to urge the Supreme Court to undertake expedited review, including possibly taking the initiative and himself filing as he previously did following the trial court’s ruling. So the Supreme Court will likely follow the same expedited procedure for cert review that it imposed in December. Thus, within two weeks from the filing of the cert petition, that process should be completed. (Following the above dates, the Court will decide by either Feb. 7 or Feb. 17.) If the Supreme Court grants cert, it will probably be around another month until oral arguments occur – we think it is likely the Court will implement some form of an expedited briefing schedule, given its prior activity. In December, Smith asked for 21 days between the Court granting cert and oral argument (per the U.S. v. Nixon precedent); the Court may fashion a slightly longer schedule. (Thus, oral argument will be roughly around March 7-17.) After oral argument, we suspect the Court will issue its decision in an expedited fashion – slower than Bush v. Gore, which was decided in a couple days; but faster than the typical timeline on a merits decision, and so perhaps within another month. (April 7-17.) That amounts to about two and a half months between Trump’s petition for cert and a final disposition by the Supreme Court. (If the DC Circuit panel follows the default rules outlined in the aforementioned first scenario, the Supreme Court would reach resolution by around May 15).
If the Supreme Court denies cert, the appeal has been exhausted and the stay of district court proceedings would end. Therefore, this process would be completed between Feb. 7-17 (or, if the DC Circuit panel follows the default rules, around March 14). The odds that the Court denies cert may increase if the DC Circuit panel dismisses the appeal, in part, on jurisdictional grounds under Midland Asphalt. On the other hand, if the DC Circuit rules only on the jurisdictional question, the Supreme Court could grant cert in order to rule that interlocutory appellate jurisdiction was appropriate – and therefore send the case back down to the circuit court for a ruling on the merits. In that case, the processes outlined above would commence about one month later. That is why the best approach to minimize delay would be if the DC Circuit panel exercises hypothetical statutory jurisdiction – thereby ruling on the Midland Asphalt jurisdictional question and also, alternatively, considering the merits of Trump’s appeal. That would present the Supreme Court with three options: (1) the Court agrees that there is no jurisdiction — in which case, they simply dismiss the appeal; (2) the Court agrees there is no jurisdiction and also exercises hypothetical jurisdiction to rule on the merits; or (3) the Court finds that there is jurisdiction over the appeal and simply rules on the merits.
In sum, the shortest plausible timeline under our assumptions: The mandate issues after five days, there is no en banc petition, and cert is denied. That would be about 19 days after the DC Circuit panel issues its decision.
The longest plausible timeline under our assumptions: Trump receives 30 days to petition for rehearing en banc, the mandate only issues until 7 days after the en banc petition is denied, Trump petitions the Supreme Court, which then grants cert and decides the case. That would be about four-and-a-half months after the DC Circuit panel decision, and would take us up to mid-May.
Of course as we noted at the outset, we are simply modeling the most likely scenarios, there are other less likely but still distinctly possible ones, such as the Supreme Court hanging onto the case for longer. For example, if the DC Circuit affirms Judge Chutkan, the Supreme Court could hold that Trump’s claim of immunity is invalid, but that the district court should apply a different test for criminal immunity, and send the case back to apply that new framework. That would risk delaying the case by many months longer, as it could entail a second round of interlocutory appellate litigation after Judge Chutkan applies the new test. (This would be mitigated if the courts applied Midland Asphalt to say appellate review should come post-trial.)
We noted at the outset that approximately three months of pre-trial proceedings still remained when the stay was entered. We should add here that it does not necessarily mean a full three months is still left once the stay is lifted. The Special Counsel has continued to uphold its end on pretrial delivery of evidence to Trump and the like while the stay has been in place. Those actions can reduce the time needed once the stay is lifted. Also, Judge Chutkan might select a more expeditious schedule the second time around.
The critical moves the DC Circuit panel can make to minimize the total time taken in the interlocutory appeal are: (1) decide it lacks jurisdiction over the interlocutory appeal; (2) simultaneously exercise hypothetical statutory jurisdiction to address the merits of Trump’s appeal; (3) structure the order governing its mandate so that the mandate issues quicker than the default rule – ideally five days after its decision – and without a stay pending a petition for rehearing en banc.
The authors gratefully acknowledge the research of Jacob Kovacs-Goodman and his creation of the graphics