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For some time I’ve wanted to take up a question that David Kurtz took up recently in Morning Memo. In short, the federal judiciary has failed the country in allowing a renegade ex-president to nullify federal law by means of a more or less open policy of endless delay by means of frivolous motions, appeals and more. As the old adage has it, justice delayed is justice denied. This hasn’t simply been during his criminal prosecutions, which I will discuss in a moment. It stretched over the time of his presidency as well. We know that during his presidency President Trump filled the federal judiciary with a slew of right-wing judges, many of them out-and-out corrupt. He also corrupted the Supreme Court with his unprecedented three appointments in a single term. But here I’m not even talking about right-wing Republican judges who often appear partial to Donald Trump’s ideological aims and frequently his narrower electoral ones as well. We know for instance that Judge Aileen Cannon, a corrupt and transparently partisan Trump appointee, has more or less single-handedly sabotaged the classified documents prosecution. Set that all aside. What I’m talking about are the fair-minded judges who allow a mix of institutional courtesy, established practice and inertia to allow Trump to make a mockery of the criminal justice system
This is not universally the case, of course. We’ve just seen Trump face a spectacular reverse in the civil proceedings involving E. Jean Carroll. But he has succeeded with it more often than not.
What prompts me to write today is the fate of the primary federal charges against Donald Trump in Washington, D.C. When I say “primary” here I mean to signify that the charges related to his attempted coup are far graver than those tied to his post-defeat handling of classified documents. Trump has mounted an appeal based on the outlandish proposition that Presidents are simply immune from prosecution, period. They can’t be prosecuted while in office, which is generally accepted. And, he argues, they can’t be prosecuted afterwards either. There are some technical niceties involved in the arguments. But that’s the gist and the technical points don’t improve the argument. It is simply not a credible argument. And it doesn’t need to be because the point is delay — the ongoing effort to push the prosecution into the window of time in which a newly elected Trump could make the case go away.
Jack Smith tried to take the appeal directly to the Supreme Court because it is a case of obvious national importance and it is certain it will eventually end up there. The Court declined to skip over the review by the DC Circuit, apparently with the support of the three justices appointed by Democrats. The expectation had been that the DC circuit would deliver a decision within days since it had already expedited the process to move quickly. That was three weeks ago. No one knows what’s happening or when a decision might be rendered. The Supreme Court could obviously scuttle the whole case in various ways but the argument is so weak that seems unlikely. And it’s not entirely clear that four let alone five justices would want to help Trump in this way. But even the DC Circuit seems to be taking its time.
It is entirely within judges purview and right to take a specious claim and deal with it as expeditiously and curtly as its lack of merit deserves. That doesn’t seem to be happening.
Then today Politico published this story which seems to say openly what many suspect: that the sole Republican (yes, I’m saying that purposely) on the panel seems to be slow-rolling it.
A key passage …
The judges seemed poised to reject Trump’s sweeping immunity claim at the time. But the precise contours of their ruling were less obvious, and it’s possible the judges could splinter over the details, further delaying the ruling.
The urgency of ruling to the prosecution has drawn unusual scrutiny of the internal machinations of the appeals court, such as whether a single judge — perhaps Karen Henderson, an appointee of President George H.W. Bush — could prevent the ruling from coming out quickly, even if the panel’s other two judges — Florence Pan and Michelle Childs, appointed by President Joe Biden — are ready to rule.
Henderson, the panel’s senior judge, had expressed opposition to taking up the case on an expedited basis and also had the most cryptic outlook based on her questions during oral arguments. As the most senior judge, she has the right to write the majority opinion if she’s in the majority. And even if she disagrees with her colleagues, she could potentially hold back the court’s ruling for weeks or months while she crafts a dissenting opinion.
There is no formal rule or policy at the appeals court that allows the majority on a panel to force the release of a ruling when another member of the panel hasn’t completed his or her opinion, according to Matthew Seligman, a former D.C. Circuit law clerk who is co-counsel on a friend-of-the-court brief in the case filed by former Republican officials opposing Trump’s immunity claim.
When the panel finally issues a decision then there will be the question of whether to give Trump the customary 30 days even to decide whether he wants to appeal it, which of course he does since dragging out the appellate process is, for him, what its all about. Perhaps that’s another 30 days.
It is not like this is slow by normal standards. It’s quite fast. But it’s not a normal case. And we’re all out of excuses. Justice delayed is justice denied. They’ve failed. Let’s just state it clearly.