“Puts him in a box”: Experts say immunity ruling may have doomed Trump’s Supreme Court appeal

A federal appeals court’s unanimous rejection of former President Donald Trump’s immunity bid has laid the groundwork for it to be upheld if appealed to the Supreme Court, legal experts say. The three-judge panel of the U.S. Circuit Court of Appeals in Washington, D.C. on Tuesday issued a 57-page opinion finding that Trump does not have blanket protection from prosecution for all acts he committed while in office. The opinion came four weeks after the circuit court heard the case in early January, and Trump is expected to appeal it to the Supreme Court. 

“There was a lot of speculation over whether the four-week delay meant there was some division among the judges,” George Washington University law professor Randall Eliason wrote on X/Twitter. “But this per curiam (joined by all 3, with no judge identified as the author) opinion presents a unified holding that offers the best chance to be quickly upheld.”

The D.C. Circuit’s decision is “not surprising,” according to former federal prosecutor Renato Mariotti, who noted the “rather silly arguments” made by Trump’s team in the appeal. “I wouldn’t be surprised if the Supreme Court declines to take this case up, letting this ruling stand,” Mariotti added.

Former U.S. Attorney Harry Litman noted that the appeals court gave Trump until Feb. 12 to seek to extend the pause in his D.C. proceedings. “That’s very quick and puts him in a box having to find a stay before then,” Litman tweeted. “Given thoroughness and unanimity of opinion, we will have lost only about six weeks should the Supreme Court deny the stay application, which we should look to it to do by around February 19. If it takes the case, mandate doesn’t return to Chutkan until early July,” he added.

Steve Vladeck, a University of Texas law professor, argued that the appeals court’s decision leaves the high court with two options to further address Trump’s immunity question. The Supreme Court can either deny the former president’s forthcoming request to pause the federal election interference case’s proceedings and “clear the way for the prosecution to proceed quickly; or it can grant the stay—and expedite its review of the merits of today’s ruling, with a decision by June,” Vladeck explained. He said he expects the court to decide on a stay application by late next week or early the week of February 19. 

“[W]e should know a *lot* more about the timing of the next steps sometime in the next two weeks,” he posted, adding: “And for those asking if Trump can seek en banc review, technically he can, but it won’t help to keep the lower-court proceedings on hold. The only way to do that is to go to #SCOTUS by next Monday.”

Former acting Solicitor General Neal Katyal predicted that the Supreme Court would not take up Trump’s appeal.

“Of course, anything can happen and it takes 4 of the 9 Justices to vote to hear a case,” he wrote. “But Trump’s argument is so weak and the Court of Appeals decision so thorough and well done, I can see SCOTUS voting not to hear it.”