By The Way, Where Is The DC Circuit Court?

Remember this?

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments Jan. 9 on Trump's broad claim of presidential immunity in the federal election interference case brought by special counsel Jack Smith[.]

This in turn happened because Trump's lawers filed an appeal to the DC Circuit on the basis that a US president is immune from prosecution for official acts while in office. Smith filed a plea with the US Supreme Court asking it to rule immediately on the issue, but the court declined to hear the case before the appeals court ruled. This was generally felt to be a threat to Smith's schedule to begin Trump's January 6 trial on March 4, the day before the Super Tuesday primaries:

The ruling is a scheduling win for Trump and his lawyers, who have sought repeatedly to delay the criminal cases against him as he campaigns to reclaim the White House in 2024. It averts a swift ruling from the nation’s highest court that could have definitively turned aside his claims of immunity, and it further throws into doubt the possibility of the landmark trial proceeding as scheduled on March 4.

The issue will now be decided by the U.S. Court of Appeals for the District of Columbia Circuit, which has signaled it will act quickly to decide the case. Special counsel Jack Smith had cautioned that even a rapid appellate decision might not get to the Supreme Court in time for review and final word before the court’s traditional summer break.

Smith had pressed the Supreme Court to intervene, citing significant public interest in a prompt resolution to the case. The request to leapfrog the appeals court, which Smith himself acknowledged was “extraordinary,” also underscored prosecutors’ concerns that the fight over the issue could delay the start of Trump’s trial beyond next year’s presidential election.

But although the DC Circuit had indicated it would review the case quickly, three weeks after it heard oral arguments, there's been no decision. Even if it rules over the coming week, it will put the tentative March 4 start date for the trial just a little over four weeks away, giving Trump's attorneys grounds to have the trial postponed, epecially since Judge Chutkan was forced to reiterate that no pretrial work could take place while the case was on appeal. So what's going on?

[L]egal analyst Harry Litman was among many experts who had expected a decision by now.

"The delay in the D.C. circuit opinion on immunity is worrisome not just, and not even primarily, because of the passage of days," Litman said. "It’s more because it augurs a divided (Henderson writing separately?) or complicated rationale that could lead to additional delays."

Litman was referring to Republican-appointed judge Karen Henderson, who raised the possibility during oral arguments that the case could be sent back to the trial court to analyze whether Trump's actions could be considered official acts as president — which could impact his immunity claim and possibly delay the trial that's scheduled to start in early March.

In other words, the lawfare strategy of starting a Trump January 6 trial the day before the Super Tuesday primaries was always flawed, and opinions I've read in the past suggest the idea of implementing the plan with indictments in mid-2023, expecting trials to begin before the 2024 election, much less the primary season, was expecting too much from the legal system and never realistic. The whole stretegy should have been put in motion at least a year ahead of 2023 if the Democrats expected it to succeed.

Coverage of Smith's December plea to the Supreme Court, as we see in the links here, carried the implication that Smith was expected to start the trial before Super Tuesday. Although his ability to do this is now seriously in question, even if he's able to bring it off, that part of the plan has been overtaken by events, since Trump effectively put the nomination out of reach for any other candidate in Iowa and New Hampshire, making any later primaries moot.

But observers like Mr Litman had probably been in denial from the time the Supreme Court declined to hear the case. Even if the DC Circuit resoundingly rejects Trump's immunity appeal -- indeed, even if it had done so the day after the January 9 oral arguments -- Trump's attorneys would simply have resumed their appeals, both to the DC Circuit en banc and then to the Supreme Court. As Jack Smith himself pointed out above, "even a rapid appellate decision might not get to the Supreme Court in time for review and final word before the court’s traditional summer break".

Thus at this point the January 6 case under Judge Chutkan, unlikely to begin on March 4 as hoped, is now also unlikely even to get to trial before the November election, by the prosecution's own estimate. This is just one blow to the lawfare strategy, which had initially been to damage Trump's chances in the primaries and promote the nomination of a general-election candidate whom the Democrats might find easier to defeat.

But this leaves aside the problem of the Fulton County trial, whose appearance of legitimacy has been largely destroyed via salacious allegations whatever the eventual outcome for DA Willis. Even here, the likely collapse of these two trials is just a symptom of a bigger set of factors that's giving Trump an advantage in 2024, which I'll go into tomorrow.