This updated article provides an overview of the potential procedural
pathways for former President Donald Trump�s ongoing appeal of his federal
prosecution for election interference by Special Counsel Jack Smith. Now
that the DC Circuit issued its opinion on Tuesday, Feb. 6, we lay out the
possible paths forward for the appeals process from here and the potential
timing of a trial start date. As before, our analysis is based on the
assumption that Trump will lose before the courts, given the weaknesses of
his argument for immunity, and the question is how long it will take the
judicial system to reach that final conclusion.

Our analysis suggests that a trial, which is anticipated to last between 8
and 12 weeks, may conclude in late August or early September if the Supreme
Court denies Trump�s eventual cert petition or in mid to late October if
the Supreme Court grants Trump�s cert petition. We caution however that
court timelines are unpredictable, and that these dates simply represent
probabilities�not certainties.
What Happens Now

Upon a DC Circuit panel issuing a ruling, the court issues a �mandate� that
serves as the procedural step sending the case back to the trial court.
Whenever the mandate is issued, the stay automatically lifts. When that
happens here, Trump will have to take further action to secure a new stay
pending further appellate proceedings in the en banc court or the Supreme
Court.

Trump�s maneuvers now depend on how the DC Circuit panel handled the
issuance of the mandate. The panel withheld the mandate until Monday, Feb.
12. If Trump files an emergency application for a stay with the Supreme
Court, the mandate is further withheld until the Supreme Court resolves
that emergency application. However, the issuance of the mandate is not
withheld if Trump files a petition for rehearing or rehearing en banc with
the DC Circuit.

The structure of the DC Circuit�s order on the mandate means that Trump
will most likely file his emergency application on Monday, Feb. 12. He has
no incentive to file earlier than Feb. 12, because the DC Circuit�s order
extends the stay from the moment of his filing that petition until whenever
the Supreme Court acts on it. He cannot file later, because the district
court (Judge Tanya Chutkan at the trial court level) retakes jurisdiction
over the case the moment the mandate issues.

Trump�s emergency application to the Supreme Court will be handled by the
Circuit Justice, Chief Justice Roberts, who will have three options: (1)
deny the motion himself (which we believe will not happen); (2) refer it to
the full Court to act on, without acting on it himself; or (3) impose an
administrative stay while the Court reviews the cert petition. Supreme
Court Rule 23(2) and 22(5). A stay from the full Court is the most likely.
Ultimately, a majority of the Justices (at least five) must vote to resolve
the stay issue, pursuant to the Supreme Court�s well-known internal
procedures. See Trevor N. McFadden & Vetan Kapoor, The Precedential Effects
of the Supreme Court�s Emergency Stays, 44 Harv. J.L. & Social Policy 3
(2021). If the Court grants a stay, it would remain in place throughout the
disposition of Trump�s appeal to the Supreme Court: If the Court denies
cert, that is the end of the process; if it grants cert, the stay would be
in place until the Court ultimately rules. FRAP 41(d)(2)(ii).

A key question now is how the Supreme Court crafts its order granting the
emergency application for a stay pending his filing a cert petition for the
Court to review the case. (If it denies the stay, then the mandate returns
immediately to the district court which will then restart pretrial
proceedings.) If the Court�s order granting the stay places no limitations
on that stay, then Trump could take the full 90 days to file a cert
petition under the Supreme Court�s rules. Indeed, it could potentially
enable him to file a petition for rehearing en banc with the full DC
Circuit prior to a cert petition. For that reason, we anticipate that if
the Supreme Court grants Trump�s emergency application for a stay, it will
limit that stay to a specific number of days after which the stay will
dissolve automatically unless Trump has filed a cert petition. (This would
eliminate Trump�s incentive to seek en banc review.) From there, the
Supreme Court will likely follow a similar expedited procedure for cert
review that it imposed in December. We therefore think that the stay will
likely be limited to no longer than 10 days. The Special Counsel would file
its responsive brief immediately, and Trump would then have perhaps a few
more days to file a reply. Thus, within two weeks from the filing of the
cert petition, that process should be completed. This possibility would
yield a decision on Trump�s cert petition (whether to hear the case on
appeal) as early as Feb. 29 (with later being quite possible).

There is another possibility. The Supreme Court could treat Trump�s
emergency application for a stay as a cert petition and grant it
immediately. The reason the Court might do so is that, at that point, both
Trump and the Special Counsel will have told the Court that it should
review the case�Trump in his emergency application for a stay, and the
Special Counsel in his December petition for cert before the DC Circuit�s
judgment. If the Court is inclined to take the case, it may not feel that
an additional round of briefing from the parties telling it that it should
would serve any purpose. In that case, the Court would grant cert as early
as the same day, next Monday, Feb. 12 (or a few days later perhaps). We
consider this a more likely option.

If the Supreme Court denies Trump�s cert petition, it would do so as soon
as Feb. 29. (Theoretically, the Court could reject the petition as soon as
Feb. 12, but it is far more likely they will give Trump the opportunity to
file a brief in favor of the petition first.)

Upon denial of cert, the case would then return immediately to the district
court, which would restart pretrial proceedings. With another three months
of those pretrial proceedings to go, trial would begin approximately June
1. (It is likely that Judge Chutkan will use the same period of time,
though she may choose a shorter schedule this second time around.) A three
month trial would then conclude around Sept. 1.

If the Supreme Court grants cert, it will probably be around another month
until oral arguments occur � we think it is likely the Court will implement
some form of an expedited briefing schedule, given its prior activity. In
December, Smith asked for 21 days between the Court granting cert and oral
argument (per the U.S. v. Nixon precedent); the Court may fashion a
slightly longer schedule. After oral argument, we suspect the Court will
issue its decision in an expedited fashion � slower than Bush v. Gore,
which was decided in a couple days; but faster than the typical timeline on
a merits decision, and so perhaps within another month. That amounts to
about two and a half months between Trump�s petition for cert and a final
disposition by the Supreme Court.

Assuming that briefing and argument schedule at the Supreme Court, we
anticipate the oral argument to take place at some point in March � between
March 5 and 15 (if the Court treats Trump�s emergency application for a
stay next Monday as a cert petition and grants it immediately) or between
March 18 and 27 (if the Court grants Trump�s application for a stay and
gives him 10 days to file a cert petition). If the Court then takes another
month to issue its decision, we anticipate that decision to be issued at
some point in April � between April 5 and April 15 (in the shorter cert
grant scenario) or between April 19 and 30 (in the longer scenario).

Once the Court issues its decision, the case would then return immediately
to the district court, which would then restart pretrial proceedings. With
another three months of those pretrial proceedings to go, trial would begin
approximately between July 5 and July 15 (in the shorter cert grant
scenario) or between July 19 and 30 (in the longer scenario). A three month
trial would conclude between Oct. 5 and Oct. 15 (in the shorter cert grant
scenario) or between Oct. 19 and Oct. 30 (in the longer scenario).

Accordingly, if the Supreme Court follows the timelines we lay out
above�which we believe are well-supported by its prior practices�Trump�s
trial would conclude no later than just before Election Day on the longer
timeline and by Sept. 1 on the shorter timeline if there is a denial of
cert.

Of course, it is within the Supreme Court�s power not to enforce an
expedited appellate schedule. If so, they could conceivably wait until the
end of this year�s term in late June to issue its decision. Under that
approach, the trial would not begin until approximately Oct. 1 and would
not conclude until around Jan 1, 2025. That delayed schedule would create
enormous uncertainty surrounding the election, which would take place in
the middle of Trump�s trial. Accordingly, we think it is both unwise and
unlikely for the Supreme Court to do so. It is also just as unlikely,
though theoretically possible, for the Court to grant cert but not hear the
case this term at all.