The Weekend Wrap: December 31, 2023

All eyes on the D.C. Circuit

Welcome to the Weekend Wrap! Here are your white collar highlights.

Trump Prosecutions

D.C. Federal Case - January 6 Allegations

When we last discussed the D.C. case a few days before Christmas, I noted there were issues involving Trump’s immunity claims currently pending before all three levels of the federal court system: at the trial court, D.C. Circuit Court of Appeals, and U.S. Supreme Court. Things have been unfolding quickly since then.

Supreme Court: On December 22, the Supreme Court denied special counsel Jack Smith’s petition for certiorari before judgment - basically a request that the Supreme Court leapfrog over the court of appeals and take the case immediately. After agreeing to consider the petition on an expedited basis, the Court then denied it in a one-line order. There was no explanation and no noted dissents.

That leaves the ball in the D.C. Circuit’s court (no pun intended). Once that court has ruled, the losing party can petition the Supreme Court for certiorari again. The Justices could agree to take up the case at that time, or they could decline and let the D.C. Circuit decision serve as the final word.

D.C. Circuit: The D.C. Circuit granted Smith’s request to put the appeal on a very fast track. Trump’s brief was due on December 23, Smith’s was due yesterday, and Trump’s reply is due January 2. The court has set oral arguments for January 9. I think we can expect a decision from the three-judge panel well before the end of January.

Once the panel issues a decision, the losing party will have the option of asking the entire court to rehear the matter en banc, and then to seek certiorari before the Supreme Court.

Trial Court: Judge Chutkan granted Trump’s motion for a stay of proceedings pending his appeal on the immunity issues. Nothing can happen in the trial court for now — although as I’ll discuss below, Jack Smith continues to file pleadings.

Potential for Delay: The biggest concern here continues to be the potential for delay. Even if the D.C. Circuit panel acts very quickly, as it appears poised to do, the time for seeking en banc review (which Trump would almost certainly do if he loses) and then for seeking certiorari to the Supreme Court could easily consume several months. The D.C. Circuit can control that to some extent by setting tighter deadlines and by refusing to stay the case past a certain date, but the potential is definitely there for Trump to drag things out.

It’s hard to know what to make of the Supreme Court’s refusal to grant certiorari before judgment. If you assume they want to decide the case eventually, then it seems it would have made sense to just jump in, as the Court did in the Nixon case. That could mean that the Court will deny certiorari again and let the decision of the D.C. Circuit stand, if the Circuit denies Trump’s immunity claims. But it’s also hard to imagine that the Court doesn’t want to weigh in on this critical and unresolved constitutional issue.

Rep. Scott Perry (Credit: AP/Amanda Andrade-Rhoades)

Jack Smith to Get Rep. Perry’s Communications: D.C. Chief Judge Jeb Boasberg ruled last week that Jack Smith’s prosecutors can obtain access to more than 1600 text messages and emails investigators seized from the cell phone of Rep. Scott Perry (R- PA). Perry has been fighting for more than a year to keep the communications out of the hands of prosecutors, arguing they are protected by the Speech or Debate clause. Boasberg allowed Perry to withhold about 400 messages, but ordered that the rest be turned over.