The new year is beginning with needless uncertainty as to when Donald Trump will face legal accountability for his Washington, D.C. criminal charges related to the Jan. 6 insurrection. His trial, which was scheduled to commence March 4, is paused, as are extensive pretrial proceedings required to prepare the case. But it need not be: The stay can and should be lifted by the D.C. Circuit.
Last month, Judge Tanya Chutkan (correctly) rejected Trump’s motions to dismiss special counsel Jack Smith’s grand jury indictment on grounds including that he was immune from prosecution. In turn, Trump brought what’s known as an “interlocutory” appeal — meaning an immediate appeal before a final judgment in the lower court. With the agreement of both sides, Chutkan stayed “any further proceedings that would move this case towards trial or impose additional burdens of litigation” on Trump until the appeal is decided by the D.C. Circuit (and potentially the Supreme Court).
We understand why both parties want these underlying questions to be reviewed before trial, yet the default rule is that appeals courts must wait until the end of a trial to hear a case. It is the rare exception, not the norm, to accept an interlocutory appeal. But here, the D.C. Circuit has the power to reject Trump’s claims of presidential immunity — and simultaneously find that this appeal cannot be brought until the trial has been completed, and thus that the temporary stay should be removed.
There is strong Supreme Court precedent indicating that appellate courts do not have jurisdiction to hear Trump’s immunity appeal now. In Midland Asphalt Corp. v. United States, Supreme Court Justice Antonin Scalia, writing for a unanimous court, said that a trial court’s decision is not immediately appealable unless the claim “rests upon an explicit statutory or constitutional guarantee that trial will not occur.” In 2010, future Justice Neil Gorsuch, then a judge on the 10th Circuit Court of…
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