Rocket Docket Update

Courts signal a willingness to move quickly in Trump appeals

Good evening all - I want to give you a quick update on all the fast-breaking news today in Trump’s DC prosecution.

Special Counsel Jack Smith (Alex Brandon/AP)

You’ll recall my arguments and articles over the past couple of weeks about the need for a “rocket docket” for Trump’s pretrial appeals - that the appellate courts need to put those appeals on a very fast track to ensure the case can get to trial as scheduled, or at least before the November election.

If you want a review, you can read more about that here:

We Need a Rocket Docket in Trump's DC Case

There were a number of important developments today concerning the scheduling of those appeals. Although it’s still early, so far the signs are good that the D.C. Circuit and even the U.S. Supreme Court recognize the urgency of getting the appeals resolved quickly.

The Interlocutory Appeals

Some quick background as a reminder: Trump has filed a number of motions to dismiss the D.C. federal case brought by special counsel Jack Smith that charges him with election interference. For two of those motions - a claim that he is entitled to presidential immunity from prosecution and a claim that the double jeopardy clause bars his prosecution - he is entitled to an interlocutory, or pretrial, appeal. Those are claims of constitutional immunity from being tried at all. To preserve that right, he’s entitled to appeal the denial of his motions before the government can put him on trial.

The normal appellate process for such claims could easily take a year or more. As a result, as I’ve been arguing recently, the single biggest factor right now that will determine whether Trump goes to trial in 2024 will be whether the appellate courts are willing to expedite these appeals and resolve them very quickly. If they don’t, and Trump is the Republican nominee, voters could be asked to vote next November without knowing whether one of the candidates has been found criminally responsible for trying to overturn the last election.

Judge Chutkan denied the motions on December 1. Trump filed his notice of appeal to the D.C. Circuit on December 7, along with a motion to stay all proceedings before Judge Chutkan until the appeals are resolved. Before Judge Chutkan, the parties are still arguing over whether she can do nothing at all until the appeals are resolved or whether, as the special counsel argues, she can still handle some collateral matters such as enforcing the gag order and ruling on motions that were already pending. But both sides agree that the trial itself can’t proceed until the appeals of the motions to dismiss are resolved.

Jack Smith’s Filings Today

Today Jack Smith filed a motion with the D.C. Circuit asking for expedited briefing on the appeal. He argued that the public has a strong interest in the case proceeding to trail in a timely manner, and that to preserve that right it is imperative that the court review the appeals on an expedited basis.

At the same time, Smith also filed a petition with the U.S. Supreme Court asking it to grant what’s known as certiorari before judgment, along with a motion to expedite consideration of the petition. In the normal course, parties can only petition the Supreme Court for certiorari once there is a final judgment in the case from a court of appeals. Certiorari before judgment is an extraordinary writ that essentially allows the Supreme Court to leapfrog over the court of appeals and take a case without waiting for the court of appeals to resolve it. It’s only granted in rare cases where there is an extraordinary public interest in the prompt resolution of a matter. Smith argues that this is such a case.

Granting certiorari before judgment is rare but not at all unheard of, particularly in recent years. Supreme Court expert Steve Vladek put up this interesting post listing the 49 times in its history the Court has granted certiorari before judgment. What’s striking is that there have been 19 such grants since early 2019 - so although historically the power was very rarely exercised, the current Court has been much more willing to use it. It will take four Justices to vote to grant it.

Smith notes that if these appeals proceed through the normal process in the D.C. Circuit, even if it is expedited, there might not be time for the Supreme Court to consider and decide the case during the current term that ends in June. That would mean pushing the decision to the following term, and that, he says, would frustrate the public’s interest in the speedy resolution of this case.

Smith relies heavily on U.S. v. Nixon, which involved the order requiring president Nixon to produce the White House tapes during the Watergate scandal. In that case the Supreme Court granted certiorari before judgment, took the case directly from the district court and bypassed the court of appeals, and decided the matter in less than two months. Smith argues that the Court should to the same here.

He wrote:

The United States recognizes that this is an extraordinary request. This is an extraordinary case. The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.

Bottom line: Smith wants the Supreme Court to take the case now and decide it quickly, but in the event it declines to do so, he’s also asking the D.C. Circuit to expedite the case. He’s hoping the Supreme Court jumps in, but is hedging his bets by asking the court of appeals to act quickly as a backup.

The Courts Respond

The very same day (today) that Smith filed his petitions with the D.C. Circuit and the Supreme Court, both courts responded.

The D.C. Circuit ordered that Trump must respond to Smith’s motion to expedite the case by this Wednesday at 10:00 am, and Smith must file any reply by Thursday at 10:00 am. That is extremely fast.

By the way, the three-judge panel assigned to the case is Judges Henderson (GW Bush appointee), Childs (Biden appointee) and Pan (Biden appointee). It’s safe to say those would not have been Trump’s first choices — no judges that he appointed.

The Supreme Court also acted the same day. It entered an order granting Smith’s motion for expedited consideration of his petition and ordered Trump to file any brief in opposition by Wednesday, December 20. Smith has asked for a deadline of the 18th, but that is still lightning speed for the Supreme Court.

It’s important to note that the courts have not yet finally decided anything - they’ve simply agreed that they will decide quickly. The Supreme Court has not decided to grant certiorari, but has agreed to decide whether it will do so on an expedited basis. And the D.C. Circuit panel has not decided to expedite the appeal, it’s just agreed that it will move quickly to decide whether to expedite it.

A Smart Move by Smith

Smith is doing everything he can to keep the trial on track. His petition to the Supreme Court was no doubt prepared well in advance so it was ready to go - you don’t throw something like that together in a couple of days.

You may have seen a lot of commentators saying things like Smith was “gutsy” or “bold” for trying to get the Supreme Court to take the case quickly, or that it was a “risky” move. I don’t see it that way. I think it’s just smart tactics. There’s nothing especially risky about it — whatever the Supreme Court is going to do (and I think they will uphold the denial of Trump’s motions), they are going to have the chance to do it at some point and are going to have the last word. Smith wisely recognizes he might as well try get their answer as quickly as possible, to preserve the best chance of keeping the trial date.

I know people might be anxious about the Supreme Court, but I think there is almost no chance that even this Court will rule that a president has complete immunity for criminal acts committed while in office. It’s just too completely contrary to our entire constitutional system. Judge Chutkan’s well-reasoned opinion will almost certainly be upheld

So What Happens Next?

There are several possible scenarios to watch for in the next couple of weeks:

1. Supreme Court grants certiorari before judgment: If the Supreme Court grants the writ, then the D.C. Circuit is basically out of the case. The Supreme Court will set a briefing and argument schedule, presumably also on an expedited basis like they did in Nixon, as Smith has requested. Hopefully they would also decide the case quickly, which could even allow the current March 4 trial date to hold. At the very latest, they would decide it by the end of their term in June. That could still allow the D.C. case to go to trial before November, although at that point it will be getting tight. Ideally the Court would recognize that and move more quickly, as it did during Watergate.

2. Supreme Court denies certiorari before judgment, D.C. Circuit expedites the appeal: If the Supreme Court declines to take the case, then it remains in the D.C. Circuit. If the three judge panel agrees to expedite the appeal, they will set a tight briefing schedule over the next few weeks and could decide the case as early as January. Trump would then have a chance to seek en banc review by the entire court, and then to ask the Supreme Court to grant certiorari (the regular kind this time, after the court of appeals has ruled). All of that could still be expedited, but will take quite a bit more time, as Smith recognized when asking the Supreme Court to short circuit all that and take the case directly.

   If the Supreme Court denies certiorari before judgment you would expect they would also deny it after judgment - but there’s no guarantee. If for some reason they wanted to see what the court of appeals does before deciding, they could decline to intervene now but decide to take the case after the court of appeals rules. And that, of course, would slow things down even more.

3. Supreme Court denies certiorari before judgment and D.C. Circuit declines to expedite the appeal: This would be the worst case scenario. If the appeal proceeds through the D.C. circuit on a regular schedule, the chances of the case making it to trial in 2024 become very slim. I don’t really expect this to happen, but if it did it would be a major victory for Trump.

The Bottom Line

As I said at the beginning, it’s still early yet. We don’t know how these different appeals will shake out or how quickly the courts will be willing to act.

But the speed with which both courts responded today and their willingness to move very quickly at these early stages has to be considered a good sign. At this point there appears to be some hope that we may get the rocket docket that’s required to keep this case on track and get a verdict before the presidential election.