Jack Smith Attempts to Prevent Trump from Delaying DC Trial with Interlocutory Appeals

In a hearing in the stolen documents case on November 2, Jay Bratt implored Judge Aileen Cannon not to base the timing of the Florida trial based on assumptions about the DC case, because that trial date

The Court really cannot let or should not let the D.C. trial drive the schedule here. In the D.C. case, they are making many of the same arguments, though they have not yet filed a motion for adjournment. They have already said that they likely will. They have talked about —


A lot of this, though, is in the realm of the — I don’t want to say hypothetical, but it is in the realm of we don’t know what is going to happen. We don’t know what is going to happen in this case. We don’t know what is going to happen in the D.C. case. Among the things that the Defense has raised in the D.C. case is that if there are adverse rulings on any of the pending motions to dismiss, that they would seek an appeal and seek to stay the proceedings. That could happen. We don’t know. Obviously, there are arguments both ways, arguments both before the Trial Court before the D.C. Circuit, but that could happen. That trial date could disappear.


Things could happen, things could happen with the D.C. case that would make going forward on May 20th, 2024, in this case not feasible. That may happen and we can address that, at that time, but we should be moving forward in this case.

The one thing he mentioned that could happen was a defense request to stay proceedings pending appeal.

Judge Tanya Chutkan certainly doesn’t want anything to delay the DC case. She said that explicitly in an October 16 hearing on Trump’s bid to stay her gag order.

THE COURT: This trial will not yield to the election cycle and we’re not revisiting the trial date, Mr. Lauro.

Perhaps to make that even clearer, after Trump filed to motion a stay pending appeal of any decision on his Absolute Immunity argument on November 1, she issued a requested order pertaining to jury selection by setting the beginning of that process to start on February 9.

But Jack Smith’s team appears to be concerned that Trump may use interlocutory appeals to delay the trial. In a response to Trump’s November 1 motion, Molly Gaston not only opposed that stay (which she described as an attempt to apply appellate and civil procedure to this criminal trial), but she requested that Judge Chutkan prioritize those decisions that are subject to interlocutory appeal: the Absolute Immunity bid, and one part of Trump’s Constitutional challenge to the indictment pertaining to double jeopardy.

[T]he defendant’s stay motion exposes his intention to use his meritless immunity claim to disrupt the Court’s schedule. Accordingly, to prevent undue delay and maintain the trial date, the Court should consider and decide first among the motions pending on the docket the defendant’s two claims that could be subject to interlocutory appeal: presidential immunity and double jeopardy.

In her motion, Gaston lays out Trump’s various dilatory tactics.

The defendant has planned to file this motion for months but waited until now in hopes of grinding pretrial matters to a halt closer to the trial date. As early as August 28, 2023, for instance, defense counsel informed the Court that the defendant would raise “executive immunity . . . with the Court likely this week or early next week, which is a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case. . . .” ECF No. 38 at 33-34. But the defendant did not file an immunity motion that week or the following. Instead, he waited more than a month before filing the promised pleading on October 5. See ECF No. 74. The defendant then waited another month to file the stay motion, late at night on November 1. Tellingly, earlier that same day, when defense counsel appeared at a hearing in the defendant’s criminal case in the Southern District of Florida, he used this Court’s March 4 trial date and pretrial schedule as an excuse to try to delay that trial—without disclosing that, within hours, he would file his stay motion here seeking to disrupt and delay the very deadlines in this case that he was using as a pretense. See United States v. Trump, No. 23-80101, Hr’g. Tr. at 24 (S.D. Fla. Nov. 1, 2023). In short, the defendant’s actions make clear that his ultimate objective with the stay motion, as has consistently been the case in this and other matters, is to delay trial at all costs and for as long as possible.

To thwart Trump’s efforts to stall any longer, Gaston requests that Chutkan prioritize the issues that can be appealed.

To limit such disruption, the Court should promptly resolve the defendant’s immunity motion, as well as his double jeopardy claim that is also potentially subject to interlocutory appeal, so that the Government can seek expedited consideration of any nonfrivolous appeal and preserve the Court’s carefully selected trial date.

She promises DOJ will use all mechanisms available to accelerate Trump’s own appeal.

To prevent the defendant from using the timing of any such appeal to disrupt the Court’s trial date, the Court should promptly consider and decide his immunity and double jeopardy motions. If the Court rules in the Government’s favor and the defendant appeals, the Government will take all possible measures to expedite the appeal, see Apostol v. Gallion, 870 F.2d 1335, 1339-40 (7th Cir. 1989) (identifying mechanisms such as requesting summary affirmance or asking to expedite the appeal), just as the defendant sought to expedite his appeal of the Court’s Rule 57.7 Order—relief that the court of appeals provided. See United States v. Trump, No. 23-3190, Order (D.C. Cir. Nov. 3, 2023) (expediting merits briefing and oral argument). In any event, although a non-frivolous appeal would temporarily divest this Court of jurisdiction, it would do so over only “those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). In sum, the Court’s prompt resolution of the defendant’s immunity and double jeopardy claims would best position this case to stay on track with its current pretrial schedule and trial date.

The thing is: The double jeopardy claim is frivolous; James Pearce noted that the four charges in the current indictment are for a totally different crime than the incitement of insurrection charged in impeachment.

But no matter how shitty the Absolute Immunity bid is, because of the historic nature of the case, all judges are going to take it seriously, including Chutkan.

The Absolute Immunity bid was fully briefed on October 26. Trump’s reply in the double jeopardy bid is due next week.

I don’t know appellate procedures well enough, nor can I imagine how John Roberts’ court will respond to a request to expedite something like the Absolute Immunity request.

But I do know that Jack Smith’s team seems to recognize that this bid for delay might work. Political pundits on both sides of the aisle are accounting for a trial that will start on March 4. But there has not yet been enough scrutiny on whether Trump’s bid for delay will succeed.

40 replies
  1. Golden Bough says:

    It’s been said elsewhere (including by Dr. Wheeler), but it’s clear that this Trump presidential run is partially, if not entirely, predicated on Trump’s desire to avoid consequences to all of his current legal troubles. Thus, strategy #1 in all of them is to delay, delay, delay until he’s elected president once again.

    The GA and NY state cases will be harder to skirt consequences in the event he is convicted, but that doesn’t mean he still won’t try.

    The irony, of course, is that all these cases would not even exist were it not that, in 2016, America made one of history’s biggest scofflaws president.

    • Datnotdat says:

      Delay, delay delay.

      On Talking Feds pod someone recently said they believe Judge Cannon is afraid of her documents trial. They speculated that she fears either preventing, or contributing to Trump’s second election. This aligns
      with my belief that her rank immaturity as a judge drives her strong predilection for delay. (Delay that is Trump’s preference, but does not arise, in her case directly, or only, from her preference for Trump and his positions.)

      • bmaz says:

        Rank immaturity as a judge? What exactly do you know about her other than the Trump affair? She has been a federal judge for three years, this is not her first day on the job. Experienced federal judges have to start sometime. If not for the lame decision by Garland to go to SDFL, you would have never heard of Cannon. What exactly is “your” level of “maturity” in federal court? Maybe you need to cut back on the credulity afforded little pod lawyers.

        • NickBarnes says:

          We all heard of Cannon last year, when she seemed to be trying hard to obstruct justice over the Mar-a-Lago search, and got her ass handed to her twice by the 11th Circuit. She has form.

      • earlofhuntingdon says:

        Twaddle. Accuracy is less important for TV lawyers than staying TV lawyers. Cannon has less experience than other federal judges, but more than some, especially that of other Trump appointees. I see no evidence that she is afraid of Trump’s case. But she does seem far less interested than Chutkan in moving it along. That makes it improbable that she has any fear of “preventing or contributing” to Trump’s re-election.

  2. WilliamOckham says:

    But no matter how shitty the Absolute Immunity bid is, because of the historic nature of the case, all judges are going to take it seriously, including Chutkan.

    This is true and very unfortunate. In reality, the absolute immunity claims are patently absurd. It’s the kind of reasoning I would expect from a hand-written brief from a pro se sovereign citizen litigant. And it deserves the same amount of consideration. Which is to say, a patient explanation of why the claims are total nonsense.

    Instead, our judicial system likely to take it seriously and, just like with the administrative stay of Chutkan’s gag order, continue to fuel Trump’s on-going coup. I’m not suggesting that any of Trump’s rights under the law should be abridged. Let’s just not clutch the viper to our chest simply because our country has no history of holding presidents to account for the wrongs they do.

  3. PeteT0323 says:

    I assume, not being a lawyer, that interlocutory appeals can be appealed all the way to SCOTUS.

    So, he’s got a year.

    Or, there is a year for Trump to be held accountable (or not) via trial(s) which he will no doubt be appeal if found guilty.

    • scroogemcduck says:

      If the DC Circuit turns him down he can appeal to SCOTUS, but I don’t expect four justices will want to give it a hearing.

      • Rugger_9 says:

        I would agree four likely will not, but it would be illuminating to see how Alito twists logic and information into his support for such special treatment.

    • John B. says:

      well, if he becomes the GOP nominee, which I expect he will, he can always lose the election, which I also expect he will…it won’t be easy and he won’t be quiet about it, but he can still lose, again, and it’s probably appropriate that this would be the way we rid ourselves of at least his personal menace and anti-democracy intentions. And then whatever delays and appeals and other forms of manipulations that may or may not work, court justice would still happen in both state and federal charges. But I also expect the first Republican that wins the presidency will pardon him of his federal crimes unless he has become so toxic that even a President Haley wouldn’t touch it with any hope of surviving…

      • Fancy Chicken says:

        I’d like to believe it’s a sure bet Trump will lose the general election but this had me experiencing Post Tumpmatic Stress Disorder yesterday.

        (No paywall worries but you do have to copy pasta)

        So Trump sees polls showing his chances of losing increase substantially if he’s convicted which will motivate him all the more to delay, delay, delay.

        Biden and democratic leadership need to get their butts in gear if they don’t want to lose swing states Biden previously won. And I’m still just gobsmacked that anybody but MAGAts would vote for Trump again or after voting for Biden. MSM needs to get serious about a second Trump presidency taking our country across a line that will be hard to turn back from. Seriously scared shitless.

        • Susan D Einbinder says:

          The methodologies used in these polls have been problematic: At least one was conducted exclusively online. When 99% of the population has a home phone, random digit dialing would generate a representative sample with 800 or more calls. Today, many people no longer have home phones, there is no phone book for cell phones, and the polling results are questioned by researchers (while the newspapers are oblivious to these problems).

  4. David F. Snyder says:

    There has already been evidence that some Trump appointees, despite even sterling credentials, may be willing to ‘let their judgement be clouded by ideological concerns’ (I’m feeling generous today) rather than adhering to the rule of law. So I’m with DOJ.

    Even Engeron gave up and allowed a witness to blather on with rhetorical, nonsensical, irrelevant vitriol — what other witness is a given such largesse? You’d think such behavior would turn the crowds from Trump, but this stuff only makes them him as a hero and/or martyr and makes him appear ‘protected by divine forces’ (I’m not making this shit up, I’ve overheard such things being said).

    • David F. Snyder says:

      Marcy’s next post does a much better job of explaining the dynamics I fumbled about with in my second paragraph. In yesterday’s example, Engeron allowed Trump to feed the media and drowned the important answer Trump gave: he is guilty of financial fraud.

      • scroogemcduck says:

        I think you should wait for Engoron’s judgement to be handed down before concluding that. Engoron is very aware that Trump would love nothing more than to goad him into a reaction that can be used to argue for a mistrial.

        • David F. Snyder says:

          But it already happened: as Marcy points out in her next post, Trump’s admission to fraud got drowned out by the Trump rant permitted in Engeron’s courtroom. To be sure, Engeron’s job is not to worry about how proceedings play out in the media. But Engeron changed his tune about keeping witnesses focused on answering the question placed to them. It wasted expensive court time while Trump got the special treatment of ranting about the clerk, the judge, the price of tea in China etc. I’d be interested to hear of any other cases, civil or criminal, where such behavior from a witness was condoned.

        • tje.esq@23 says:

          Google (verb) the Chicago 7 trial.

          Rolling Stone’s reporters teamed for another amazing exclusive dropping a few days ago, citing 3 anonymous sources and Dershowitz on the record, affirming the ‘Chicago 7’ circus trial is Trump’s objective in his NY Civil Fraud Trial.


          Balance with your common sense, of course, that anyone with no impulse control or very little, could strategically execute such a pre-formed plan.

        • earlofhuntingdon says:

          Common sense would also dictate paying scant attention to whatever today’s Alan Dershowitz says.

    • tje.esq@23 says:

      Such largess, perhaps, may have been extended to Sam Bankman Fried, in his testimony last week. But in his case, my understanding is his ADHD has been undermedicated. For many of our fellow sufferers out there, faced with a nationwide shortage of ADHD meds, it’s hard not to commiserate — with BOTH SBF and Trump — in the ‘lack of impulse control’ and ‘rambling on and on, completely off the subject’ regard.

      And to our non-adHd-sufferers, as confounding and bewildering as this might be to the average person, cherish and be thankful you have “thoughts” that stay in your head before you speak, or that form a number you retain in your head before you face a snack vending machine. There are many on this planet who have no idea that such a thing exists, and who are relegated to never getting the snack they desire when confronted with the bank of tantalizing numbers on the vending machine panel….and who purposefully must avoid any route going past a fire alarm pull bar that they know of its location in advance.

      Not referring to a Congressman here, just a vivid contemporary reminder that it is important to acknowledge that our adHd friends — either undiagnosed or un-, under-, or improperly-, medicated — never have “thoughts” that occur first before an action emerges from our bodies, and certainly no time for ‘no, don’t pull’ to enter the picture.

      And not trying to excuse what looks like irratic and completely self-sabotaging and erratic behavior in trial testimony, but brave adHd sufferers who have had the courage to get diagnosed as adults and are lucky to have psychiatrists with creativity to try to manage symptoms, regularly watch Trump and wonder if he could have had such courage and capable doctors, where our country would be right now.

  5. Amicus12 says:

    So, we have a stay motion (Doc. 128) and an opposition (Doc. 142) neither of which lay out the standard for grant of a stay. “[T]hose legal principles have been distilled into consideration of four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418 (2009).

    The USG essentially argues the stay factors but given the stakes I think it would have been preferable to address the considerations seriatim. I suspect the Court will do so, and I suspect it will deny the stay.

    I also find it troubling that the USG identified the double jeopardy argument as frivolous but not the absolute immunity claim. Jeopardy attaches with respect to criminal prosecutions. Jeopardy does not attach in an impeachment proceeding because it is a political trial that has only civil consequences. Doc. 139 at 58. Trump’s attempt to read the judgment language of the Impeachment clause upside down, to provide that only those who have been convicted of impeachment (but not those acquitted) can face criminal prosecution is absurd.

    The absolute immunity argument is likewise frivolous, and the USG should have said so. Yes, it’s a shiny new object, but making grandiose legal arguments divorced from the applicable facts, here the provisions of the indictment, is frivolous.

      • Rugger_9 says:

        Both prongs are frivolous, but I would perhaps consider that this is an opportunity to drive a stake into the ‘Absolute Immunity’ vampire. I would expect Chutkan to do so in her ruling.

        As for impeachment ‘double jeopardy’ there isn’t any and never was. No jail time results from conviction in the Senate (only removal and disbarment from future office), and as noted above and many times before in other posts impeachment is a political process not a criminal trial. That’s even before considering that SC Smith brought charges unrelated to the impeachment rap fr J6 as noted in the post. No ‘res judicata’ applies if I have it right.

    • SteveBev says:

      “Grandiose arguments divorced from applicable facts… is frivolous”

      This hits the nail on the head.

      And though SC have not deployed the term ‘frivolous’ is not such a conclusion the necessary implication of their arguments?

      It is true that they are more hard hitting in the subsequent filings.

    • harpie says:

      re: the USG identified the double jeopardy argument as frivolous but not the absolute immunity claim.

      Marcy wrote something about that on 10/21:

      […] Trump’s absolute immunity claim was a shoddy argument, but you never know what this SCOTUS would rubber stamp. […]

      Shoddy argument and all, there was never going to be a way to carry out the first-ever prosecution of a former President without defeating an absolute immunity claim.

      In general, DOJ’s response is […] written as the first response in what will be, whatever the outcome, a historic ruling. […]

  6. Paulka123 says:

    If trump wins the absolute immunity claim does that mean Biden could order him arrested and shipped off to gitmo?

    • Rayne says:

      Your comment is really annoyingly shallow and not funny — but this seems to be your oeuvre over your last 77 published comments and quite a few which weren’t. Don’t waste the comment space here with this crap or you’ll be helped to the exit.

  7. Fiendish Thingy says:

    Maybe this is naive on my part, but if Chutkan rules quickly on absolute immunity, doesn’t that improve the odds that the appeal will make it to SCOTUS before the March 4 start date for the trial?

    Seems like some of Trump’s other appeals (executive privilege, for example) have moved fairly quickly up the judicial food chain in the past.

    • Rugger_9 says:

      It depends on how quickly the related appeals are filed. I would expect DoJ to move with emergency speed, but would also expect Defendant-1’s team to wait to the last microsecond like they have been doing in all of the other case filings in the various courts.

      I don’t know what the rules are for timeliness, whether there is a Rules of Court standard or if Chutkan herself can expedite the time to file. The latter might create an opening for a claim by the defense of a ‘rush to judgement’.

      OT: thanks for bringing back editing.

      • Attygmgm says:

        If I recall correctly, there are 30 days to appeal to the Court of Appeals, in this case the DC Circuit. From a Court of Appeals there are 90 days to petition the Supreme Court to take an appeal on a writ of certiorari. So that’s four months of potential delay right there.

        • Fiendish Thingy says:

          IIRC, four months is about how long it took for Trump to exhaust his appeals on executive privilege, and for SCOTUS to reject his appeal.

          So, if Chutkan rules sometime this month on absolute immunity, then the appeals could be resolved by March next year.

      • earlofhuntingdon says:

        The DC Circuit is likely to rapidly deal with any appeal. But Trump will appeal any adverse ruling by a panel to the full court. The S.Ct. may take its time, unless it sidesteps a landmine and refuses cert.

        • tje.esq@23 says:

          okay, crazy thought here.

          Any chance appellate panel weighing gag order stay could sua sponte docket Trump’s appeal to any adverse Chutkin ruling, once made, set oral argument date and order briefing /set due dates? (In effect, undercutting the 29 day window Trump will assuredly take to file his appeal).

          Don’t know appellate procedure, so assume question might seem ridiculous to those who do.

          just mulling some out of box thinking here.

        • earlofhuntingdon says:

          Unless and until Trump files an appeal, there is no appeal to docket or set a schedule for. But the DC Circuit will move expeditiously if and when it gets them.

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