The November 2024 election looms over the three criminal cases in which Trump is the defendant. He has made it clear, by public statements and litigation tactics, that he wants none of these cases to go to trial before the election. If he avoids trial and wins in November, he will terminate all prosecutions of him.
This is a result that the non-criminal, non-psychotic part of the electorate rightly wants to avoid. Its concern is reflected in eyes that flit anxiously between the election calendar to the three trial calendars. Three easily winnable, not-to-be-missed shots at conviction are in jeopardy because of dawdling judges.
In the election case, oral argument in the DC Circuit Court of Appeals took place on January 9. Three weeks later, the lack of a decision from the court has led to press speculation about the delay “What on earth is taking so long,” especially for a case that’s one of “the most consequential—and most straightforward cases in living memory”?
This is the case in which Trump asserts “absolutely immunity” against criminal liability for whatever he did during his time in office. He offers no law, case decision, or provision in the Constitution to support his claim. At oral argument, two of the three Circuit judges were openly skeptical. Why, then, a delay in the ruling?
For starters, Circuit judges are legal royalty, even if second-level. They do things the way they do them because they can. They may not be Supremes, but they do the heavy lifting in Federal courts when it comes to law-making. Unlike the Supremes, they don’t get to pick and choose the cases they take.
Also unlike the Supremes, Circuit judges don’t get to invent stuff and call it law because they’re bound by a higher legal authority. They do, though, have to deal with the consequences of what bubbles up after the Supremes make a hash of something. They see themselves as the more serious jurists accordingly.
Yet Circuit judges retain that glimmer of hope of elevation to the Supreme Court. This means they’re not oblivious to political realities. Because of where it sits and the matters it deals with, whatever the DC Circuit does is refracted through the political environment that surrounds it.
The panel in Trump’s case consists of Pan and Childs (both Biden appointees) and Henderson (GHWB). Gleaned from oral argument is that Pan and Childs were overtly skeptical about Trump’s immunity argument, especially its “absolute” version, although far too politely so given the absurdity of Trump’s arguments.
Henderson, around since 1990 and never anything approaching progressive, has lurched further right over time (see her dissent in the case on Trump’s tax records). Her misplaced (disingenuous?) concern at oral argument was: “How do we stop the floodgates? OLC [in its policy memo] worried about necessarily political prosecutions.”
For a “conservative” and “anti-activist” judge, the focus on floodgates is curious. Her job is to decide cases that come before her. If those cases happen to include “political prosecutions” (assumed to mean prosecutions without legal merit) she has an arsenal of substantive and procedural law available to deal with them.
Her even mentioning “political prosecutions” in a case with an indictment of well-pleaded and even admitted facts gives unwarranted credence to Trumpers about his being prosecuted (persecuted) for political reasons. It’s hard to imagine she said this in ignorance of its implications, not least as a signal to the Trump faithful.
Her reference to “political prosecutions” also suggests she’s looking for a way out on the immunity issue to avoid having to decide something that could be seen as “political”. This gets to something more general and fundamental: the two enduring, starkly contrasting views on what judges are supposed to do.
It’s a common conceit for judges like Henderson to see themselves as above of grubby politics and the real-world consequences to their work. The separation-of-powers argument is the tool they use to float in legal abstraction. The broader obligation to help the healthy functioning of the republic doesn’t occur to them.
What does this have to do with the delay in the DC Circuit? Circuit judges love unanimity; dissents undermine (the overrated) “collegiality”. It’s possible that, here, the two newbies, Childs and Pan, out of deference to their senior colleague, are trying to drag Henderson into a unanimous opinion that rejects Trump’s immunity argument.
Alternatively, it’s possible that Henderson has already decided to dissent and is plodding along at her own sweet pace to come up with something plausible-sounding. If so, we can expect her to come up with something procedural (jurisdiction), anything other than what squarely addresses presidential immunity.
Whatever the case, and assuming she is the hold-up, Henderson is choosing not to be rushed. It’s not for her to consider the election calendar with respect to an indicted candidate for the highest office as that would be seen as a “political” consideration.
Weird is that, even if this crew comes up 2-1 against Trump, it’s likely that Trump will ask for an en banc review. In other words, a low-risk proposition for Childs, Henderson, and Pan. Good news / bad news: given the make-up of the DC Circuit, Trump will lose before the entire Circuit.
Unfortunately, that loss will take time, which will push the trial date into the summer, prime electioneering season. And even if the DC Circuit managed to expedite things, the matter is guaranteed to come to a screeching halt at the desk of Roberts, the nation’s highest politician in a black dress pretending to be a jurist.
Circuit judges probably see a dilemma: if they treat Trump’s case differently by (sensibly, given the context of the political calendar) expediting its consideration of it and ruling against him, they’ll be accused of “election interference” which, in turn, will cause the public to “question the independence and legitimacy of the judiciary”.
That’s a bizarre concern for people with a sinecure. Losing litigants are unhappy with court decisions all the time. Just because the loser in this case is the currently highest-profile politician should be of no import to how to process the case at hand. It’s an entirely political concern, the very thing they say they’re not concerned with.
The answer may be as simple as, from the perspective of Circuit judges’ reputational interest, it’s easier to pretend that the November election doesn’t exist, even if doing so is an abject surrender of the public interest to a person whose existence is an insult to democracy and the good government it needs to keep working.
But it surely doesn’t elude them that the combination of a delayed decision on bringing Trump to trial and his win in November will — with “his” DOJ as cretinous as he is — shut down legitimate prosecutions. With that these judges will have made a portentous decision, one that’s as political as can be in its consequences for us all.
