by ShipWreckedCrew:
Recent procedural moves by three different courts considering cases and charges filed against both former President Trump and hundreds of January 6 defendants are moving in sync — in my opinion — to likely derail any trial in the matter of United States v. Trump in the District of Columbia federal court. Here are the dates and events at issue:
Here is a timeline of the most recent events in order that they took place. Below the timeline is an analysis of how I think the events fit together. Keep in mind, while there are multiple courts and Judges/Justices taking actions, there is only one calendar and the moves of each Court impact the calendaring options of the other Courts. All dates are 2023 except where otherwise indicated:
Dec. 1: Judge Chutken in the DC District Court issued an Order and Opinion denying Trump’s motion to dismiss based on Presidential Immunity.
Dec. 1: The cases United States v. Fischer, United States v. Miller, and United States v. Lang — January 6 defendants either charged or convicted of violations of 18 U.S.C. Sec. 1512(c) for obstructing Congress — are set to be considered in “Conference” by the Supreme Court. But the death of former Justice Sandra Day O’Connor that same day causes the Conference to be canceled, and the cases are “re-listed” for the Court’s next Conference on January 8, 2024. Defense attorneys — including the author here — prefer that the Court take up Fischer, but that’s another story.
Dec. 7: Trump filed a Notice of Appeal in the DC Appellate Court. At the same time he filed a notice with the District Court that he considers all deadlines in the DC case to be suspended while his appeal is pending.
Dec. 11: Special Counsel Smith files a request for “Cert. Pending Judgment” with the Supreme Court, asking that the immunity issue be decided by the Court without waiting for the DC Appellate Court to decide Trump’s appeal, and to do so on an expedited basis.
Dec. 11: On the same day, SC Smith asked DC Appellate Court to order briefing and argument on Trump’s appeal of the immunity issue on an expedited basis. He does this because it is not certain whether the Supreme Court will take the immunity issue up under the “Cert Pending Judgment” rule.
Dec. 11: The Supreme Court issues an order directing Trump to respond by December 20 to the SC Smith’s request for the immunity issue to be taken by the Court under the “Cert Pending Judgment” rule. Whether to also hear that on an expedited basis is not mentioned in the Order.
Dec. 13: Judge Chutken issues an Order agreeing with Trump’s position that the DC District Court case is stayed pending the outcome in of the DC Appellate Court, subject to a few minor exceptions.
Dec. 13: The DC Appellate Court issues a briefing schedule on Trump’s appeal of the immunity issue, giving him to only Dec. 23 to file the opening brief, with the the Special Counsel opposition brief due Dec. 30, and the Trump reply brief is due Jan 2. This is an extraordinarily short briefing schedule from a three-judge panel that includes two Biden appointees.
Dec. 14: The Supreme Court issues an order — unexpectedly — accepting the Cert Petition filed by J6 Defendant Joseph Fischer (United States v. Fischer) challenging DOJ’s use of 18 U.S.C. Sec. 1512 in connection with the Jan. 6 cases. Two of the four counts against Trump in the D.C. District Court case are based on Sec. 1512. On December 1, the Fischer case was re-listed for Conference on January 8, 2024.
Dec. 18: The DC Appellate Court, on a 2-1 vote, on its on motion set oral argument on the appeal of the immunity issue to take place on January 9, 2024. The dissenting Judge added a sentence to the Order that the Court should wait for the Supreme Court to decide if it will accept the case under the “Cert Before Judgment” rule, and would not set a date for oral argument until that decision is announced.
The overall effect of these moves is to leave all the cases somewhat in limbo while the Supreme Court awaited Trump’s December 20 filing on whether or not he agrees with the Special Counsel that the immunity issue should bypass the Appellate Court and go straight to the Supreme Court.
Trump has now opposed that effort by SC Smith to fast-track the issue to the Supreme Court. In the Nixon case relied upon by SC Smith, both sides asked the Supreme Court to take up the issue under the “Cert Before Judgment” rule.
If the Supreme Court agrees to take up the immunity issue without having it go through the Appellate Court first, that decision combined with the Court having accepted the Fischer appeal — challenging the use of Sec. 1512 — will almost certainly freeze the District Court case in DC until mid-summer 2024 when the Fischer case should be decided. I cannot imagine any scenario where the DC case would go to trial prior to the outcome in Fischer, as the Sec. 1512 count is the foundation upon which the DC case rests.
When the summer of 2024 arrives, the calendar is likely to be cluttered with all manner of pretrial procedural matters regarding the documents case filed by SC Smith in Florida. I expect when those dates are reset by Judge Cannon in Florida — she is likely to do so in March and/or April 2024 — her scheduling order will come along with a direct message to SC Smith that he should not schedule any other trials — in any other districts — that conflict with any dates in the case before her. She didn’t make that explicit last time — the D.C. case had not been filed yet. I don’t expect she will make that mistake again.
If the Supreme Court takes the immunity issue up now, Special Counsel Smith has asked to have it heard by the Court on an “expedited” basis. He’s already asked as much in his Petition by citing the example of United States v. Nixon from 1974 where the Court bypassed the appellate court and then also fast-tracked the case in order to preserve a trial date that was already set.
But asking the Court to do so regarding the immunity issue ignores the implications of the Court having taken up Fischer. Accepting that case for review last week, with there being no justification to handle Fischer on anything but the Court’s normal schedule, means the Supreme Court has basically put the D.C. District Court case on ice until the end of June without doing so directly. Nothing would justify short-circuiting Fischer’s right to have his Supreme Court case driven on a timeline that fits SC Smith’s priorities. The normal briefing schedule for a case taken up by the Supreme Court in December would be briefing in March. The Court’s final oral arguments for the 2023-24 comes the last week of April. The Court issues all its opinions by the end of June.
But it is even possible that the Court could have the briefing completed this term but not schedule the argument until its next term, beginning the first week of October. That would produce a decision in November or December of 2024. That would be one way to push the Trump case past the election without having to do so directly. It would keep several hundred cases involving January 6 defendants on hold, but if Trump wins he has promised to pardon those defendants so the entire Sec. 1512 issue could be moot.
So the “eye of the needle” MIGHT be to hear the immunity issue on a normal schedule, thereby eliminating the March 4 trial date currently set, but ultimately ruling against Trump on the question while reserving some room to maneuver as was the case in Nixon.
Next the Court could move the Fischer case to the 2024-2025 term beginning in October 2024, with no decision coming prior to Election Day. AFTER the outcome of the November 2024 election is known, it might be possible for the Court to avoid the Sec. 1512 question entirely if Trump wins and announces that he intends to follow through on his promise to pardon all January 6 defendants convicted on the Sec. 1512 charge.
If he does, Trrump would be accountable to Congress pursuant the Impeachment provisions in the Constitution. Whatever that outcome might be, the Constitution will have worked in the manner in which it is designed, and the branches will have “checked and balanced” each other.
This potential scenario can only play itself out if it is given time to happen. The benefit to the Court from delay comes from the potential not having to render politically charged decisions.
As well it should. The indictments are bogus at best.
And should the USSC decide in favor of the three j6 prisoners, half of the indictments cease to exist.
If elected, will he shut down the trials and investigations against him?
He should. They are a fascist waste of money.