Mandate Matters: How the DC Circuit Could Limit Trump's Run-Out-the-Clock Strategy

Contributing sentiments towards policy:

47% : All of this is to say that the DC Circuit has every reason to put the burden on Trump to move quickly to petition the Supreme Court by issuing the mandate in accordance with the Special Counsel's request.
46% : And that does not even include the potential additional delay from Trump asking the Supreme Court to review the case (more on that below) - for which he could have 90 additional days.
46% : If the Supreme Court wanted to decide the case, or Trump felt they needed to decide it, they both could have acted to make it happen.
45% : A quick return of the mandate will not prejudice Trump.
43% : The claim is part of a defense strategy in which Trump is asserting, in essence, that he should not be restricted by general legal constraints and using that assertion to delay (or prevent altogether) the various prosecutions against him, including the federal election conspiracy case giving rise to this particular appeal.
43% : His goal is to avoid political accountability for what comes from a trial, amplify his claims of election interference, or else put himself in position to try to make the charges go away if he returns to the Oval Office.
43% : And it is worth noting that the only reason Trump is getting interlocutory review in this case at all is because no other president has caused the courts to decide that the extraordinary immunity he seeks is not available, thus creating the clear precedent that would foreclose the argument he is now making.
41% : At a minimum, it should condition any pause of the mandate on Trump seeking Supreme Court review without delay, say within 7 days of its judgment.
41% : But having not done that, there is even more reason for Trump to shoulder the burden to ask quickly for the Supreme Court to take and stay the case.
40% : Because Trump is appealing whether he can be prosecuted at all, that leaves the trial in suspense until the appeal is resolved.
39% : And significantly here, as Justice Brennan further explained, speedy criminal justice also promotes fairness and efficiency by limiting the ability of criminal defendants to frustrate justice through delay and other nefarious actions - such as intimidating witnesses and court personnel, as Trump has shown he is wont to do.
38% : At that point, Trump will be out of options for waiting to seek Supreme Court review, which can be granted or not in accordance with the Supreme Court's discretion.
37% : Doing so would be in line with a growing collection of recent decisions by the Supreme Court and other courts denying that Trump is immune from legal liability or protected by constitutional privileges for actions he took as president - these range from claims of immunity from a defamation suit by a woman Trump was found to have sexually assaulted, immunity from civil suit and subpoenas in state court seeking accountability, and protections from congressional subpoenas concerning January 6th.
35% : It would not be acceptable for the Court to decide a case quickly when doing so benefits Trump and do the opposite when delay is the result he wants - and so obviously harms the public, which has as great an interest in knowing whether candidate Trump is guilty of federal crimes as it has in knowing whether he will be a candidate at all.
34% : The rules give it ample discretion to issue the mandate quickly and put the trial back on track - or at the very least deprive Trump of the opportunity to run the legal equivalent of the "prevent defense."
34% : It also involves vital public information (ie, whether Trump is innocent or guilty of federal crimes and the evidence that supports the ultimate conclusion) that the American people have a strong interest in knowing prior to an election in which Trump has chosen to offer himself as a candidate for the office he stands accused of abusing.
31% : Adding that to the 7 days in the mandate rule means the mandate would not issue for 21 days even if Trump does not seek rehearing - and, well, given his delay strategy why wouldn't he petition for rehearing?
31% : Trump should not be permitted to take advantage of his own unprecedented conduct to further delay the proceedings.
30% : Trump opposed it and the Court denied the request.
27% : To that end, last October (a full two months after announcing his intention to do so), Trump argued in the trial court that as a former president he is absolutely immune from prosecution for actions he took while in office.
26% : If Trump asks it to stay the mandate to keep sitting on the case and prevent Judge Chutkan from moving forward it should decline to do so.
26% : As noted, Trump has every right to seek Supreme Court review of the DC Circuit's decision, but the chances a majority of the Court would hold that a former president has immunity from criminal prosecution and that Trump's actions in this matter were "official" rather than personal are exceedingly slim.
25% : Trump has made no secret of his desire to delay his various criminal trials as long as possible.
25% : Owing in part to the DC Circuit's own recent unanimous decision - by an ideologically diverse three-judge panel - denying an absolute immunity claim by Trump in a civil case involving January 6th, the DC Circuit will almost certainly affirm the district court in denying Trump's claim to immunity in this criminal case.
22% : Yet the most important part of that brief may not be the compelling catalog of constitutional principles and precedents showing why Trump lacks immunity, but instead a cryptic sentence on the very last page.
12% : This is especially so in light of the other serious matters involving Trump making their way to the Court - including the question of whether Trump is constitutionally disqualified from remaining on the ballot under section 3 of the 14th Amendment, which the Court decided to hear on an expedited schedule just two days after Trump filed a cert petition.

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