Lock Him Up 2024 wrote:
> 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.
>
none of this means anything in fact ,
the next president is going to be worse