After a fast start, the Court of Appeals delays Trump's immunity decision

When a federal appeals court in December agreed with former President Donald J. Trump's sweeping claims that he would be immune from charges of conspiring to overturn the 2020 election, it set up a rapid-fire briefing schedule that included the defense and prosecutor were asked to submit their papers. on consecutive Saturdays during the Christmas and New Year holidays.

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit also moved with unusual alacrity in arranging a hearing for arguments on the issue, scheduling the proceedings for January 9, just a week after all papers had been submitted. filed – a remarkably short time frame by the standards of the legal system.

But after sending what appeared to be clear signals that they intended to quickly resolve this phase of the immunity dispute — which is at the heart of both the viability and timing of Trump's trial on election subversion charges — the judges of the court of appeal have not yet issued a decision.

The consequences are already becoming clear. On Friday, Tanya S. Chutkan, the federal district court judge who oversaw the election case, formally scrapped her plan to start the trial on March 4. She bowed to the reality that the time to initiate the proceedings had passed by then, especially because of the wrangling over Mr. Trump's immunity claim, and said she would set a new date “if and when” that issue has been resolved.

The discrepancy between the expectations raised by the panel's initial steps to expedite the case and the weeks that have now piled up without a ruling has drawn the attention of some legal experts who are closely watching the case.

It has also caught the attention of Mr. Trump's lawyers, who have watched from the sidelines with something akin to quiet glee. Every day that passes without a verdict reinforces their strategy of delaying the trial until after the presidential race has been decided.

“It is surprising, given the speed with which they briefed and argued this appeal, that the court has not yet made a decision,” said Stephen I. Vladeck, a law professor at the University of Texas at Austin who specializes in federal courts. “It is surprising, both because of the speed with which they acted and because of the broader timing considerations in this case – both the March 4 trial date and the looming specter of the election.”

It is impossible at this point to get any real insight into what is going on among the members of the panel, which consists of two judges appointed by President Biden and one judge placed on the bench by President George HW Bush.

The latter judge, Karen L. Henderson, had previously opposed expediting the immunity appeal and has voted in favor of Mr. Trump in several previous politically charged cases. As the panel's senior lawyer, Judge Henderson has the authority to write the opinion if she is in the majority. And she has no deadline to get the job done.

Professor Vladeck said many people in the legal community had speculated about what Judge Henderson's role might be in the delay, although he also noted that no formal rule prevented the other two judges on a panel from ruling on their own . .

While that would be a “violation of judicial decorum,” he said, Judge Henderson's colleagues — Florence Y. Pan and J. Michelle Childs — could theoretically make a decision without her.

One possibility behind the delay is that the panel is deadlocked on immunity, although that seems unlikely given that all three lawyers expressed some skepticism about Trump's claims during last month's hearing in Washington.

It could also be that the justices agree that Mr. Trump does not have immunity from prosecution, but struggle to reach a consensus on how to formulate their decision on one of the most momentous questions of presidential power that courts have considered in years.

Professor Vladeck said the panel would benefit – if only in terms of public opinion – if it reached a unanimous decision, both in terms of reasoning and outcome. The benefits of avoiding the appearance of a divided panel, he noted, are likely worth taking “a few extra days – or even a few extra weeks.”

The appeals process began in early December, when Trump's lawyers asked the appeals court to overturn Judge Chutkan's denial of his immunity claims. Judge Chutkan also froze the underlying case, putting the proposed trial start date in jeopardy.

Even if the immunity issue is resolved in the coming weeks, it is not clear how quickly the case could go to trial. Judge Chutkan has scheduled a new trial in her courtroom, which could last about a week, starting April 2. And she has hinted in court filings that, in the interest of fairness, she wants to ensure that Mr. Trump's lawyers are given the time they are entitled to prepare for the trial.

The timing will also likely be determined by the Supreme Court, assuming one or the other side appeals the three-judge panel's ruling to the justices.

The Supreme Court could decline to hear the question and leave the appeals court ruling in place — a move that could appeal to the justices. They are already embroiled in another politically charged issue involving Mr. Trump, whether states can disqualify him from voting this year over his role in the Jan. 6 attack on the Capitol.

But if the court hears the immunity appeal, it will have to make the equally important decision about how quickly to take action in hearing it.

Depending on the justices' actions, the election interference case could go to Federal District Court in Washington as early as April or could be postponed until after the election. If that happens and Mr. Trump wins, he could ask his Justice Department to dismiss the charges. Even if the charges were to remain in force, proceedings against him could be frozen while he remains in office, under a long-standing Justice Department policy against prosecuting a sitting president.

Judge Henderson has generally shown herself to be more willing than some of her colleagues on the appeals court to rule in Trump's favor.

In November 2019, she was among the dissenters in an 8-3 decision by the full appeals court that Mr. Trump's accounting firm had to hand over eight years of his financial records to Congress.

She was also part of a panel that ruled in February 2020 that Trump's former White House counsel, Donald F. McGahn II, was immune from a subpoena to testify before the House of Representatives. A few months later, the full court overturned that decision.

And in June 2020, Judge Henderson was part of a panel that ordered a district court judge to immediately dismiss a case against Trump's former national security adviser, Michael T. Flynn. That would have blocked the district court's plan to investigate the circumstances under which the Trump-era Justice Department sought dismissal of the case, even though Mr. Flynn had pleaded guilty. The full Court of Appeal also reversed that decision over her objections.

In August 2022, Judge Henderson joined in a ruling that delivered a setback for Mr. Trump. The decision gave the House access to Mr. Trump's tax records. But in a separate opinion, she expressed unease about “the potential and incentive of Congress to threaten a sitting president with a post-presidency request for tax returns” to influence the president while in office.