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How Trump could use immunity loss to delay his D.C. prosecution

Immunity and double jeopardy are appealable pretrial issues. Trump can now use them to try and thwart the March trial date.

By

On Friday night, U.S. District Judge Tanya Chutkan issued a significant ruling against Donald Trump. It not only reaffirmed the principle that no one is above the law, but on a more practical level, it set the stage for the next possible means of delay in the federal election interference case that’s scheduled for trial in March.

Special counsel Jack Smith had urged Chutkan to rule quickly on two issues in particular: The former president’s (weak) arguments that he has presidential immunity and that double jeopardy (somehow) bars his prosecution because he was acquitted at his second impeachment trial over the Jan. 6 insurrection. Smith called out those claims because they can be appealed pretrial. Since those were among the Trump arguments rejected by Chutkan on Friday, they’re now primed for appeal to the U.S. Court of Appeals for the District of Columbia Circuit and then the U.S. Supreme Court. ?????

The question now is how long this will take.

The question now is how long this will take. A normal appeal that winds its way to the Supreme Court can take at least months to sort out, which, of course, would thwart the March trial date. Obviously, an unlikely appellate ruling in Trump’s favor would moot the trial and the prosecution itself. (Trump has pleaded not guilty.)

But this isn’t a normal appeal, and the courts are equipped to consider these issues on an expedited basis that wouldn’t upset the trial schedule. Knowing that, the former president’s legal team may want to push off launching their appeal “until the very last day,” as MSNBC legal analyst Andrew Weissmann observed:

Such a relatively brief initial delay-within-the-delay on Trump’s part wouldn’t alone do the work of postponing his Washington trial, which is the first one scheduled among his four criminal cases, as he runs for president again in the hopes of a victory that would crush, or at least further postpone, all of his prosecutions. But it’s still unclear how long it would take the appeals court and then the Supreme Court to address. Note that the high court largely has discretion over its docket, and it takes four justices to agree to hear a case.

As with seemingly every crucial issue in American life, its resolution — and, perhaps more importantly here, the timing of that resolution — ultimately lies with the justices.

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