'Not how the system works': Why Trump’s January 6th trial date appeal will probably fail

04 September 2023

Ex-President Donald Trump's defense attorney John Lauro wants United States District Court Judge Tanya Chutkan to delay Trump's criminal election subversion trial until 2026. In an analysis published in Monday's Washington Post, correspondent Devlin Barrett explains that Trump will probably fail because that date was "rejected as far too long to wait" by Chutkan, who "settled on March 4th" of next year.

"Trump, the Republican front-runner for the 2024 presidential nomination, faces four criminal cases — federal charges in DC and state charges in Georgia over efforts to block Joe Biden's 2020 presidential election victory, federal charges of mishandling classified documents in Florida, and a state business-fraud case in New York," Barrett recalls. "He has pleaded not guilty to all 91 charges against him. Lawyers for the former president have argued, unsuccessfully so far, that his trials should take place after the 2024 election, sometimes citing the presidential campaign calendar or the complexity of the charges against him."

Justice Department special counsel Jack Smith charged Trump on August 1st with "conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of an official proceeding; and conspiracy against voting rights." Barrett points out that although Trump's lawyers are "preparing a slew" of motions for Chutkan to review, there are few avenues that lead to Trumpworld's desired destination.

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Barrett writes, "Lauro said he will attack the indictment on several fronts, arguing the former president's actions were protected by the First Amendment — that he had a right to speak and act on what he claimed was voter fraud in 2020 — and saying that Trump is a victim of selective prosecution motivated by politics. Lauro also told the judge that Trump's lawyers are 'going to have a very, very unique and extensive motion that deals with executive immunity' — arguing that in 2020 and early 2021 Trump was acting in his capacity as president and therefore immune from prosecution. Such a motion could be filed in the first half of this month, he suggested. Of all the legal issues Lauro has raised since his client was indicted in the case in early August, it's the executive immunity claim that, once decided by Chutkan, probably has the best chance of reaching a higher court before trial — what lawyers call an interlocutory appeal."

This path too has low odds of success, according to former Deputy Appellate Chief Linda Julin McNamara of the US Attorney's Office in Tampa, Florida, who told Barrett that "most people think a person can appeal anything they don't like in a case along the way, and that's just not how the system works."

McNamara stressed that "there's very little" that Trump "can do at this point to slow things down via the appeal process" because "there's a very small class of matters that can be taken up on an interlocutory basis, and in this case, immunity is something that may merit an interlocutory appeal because immunity is immunity from prosecution altogether."

Barrett pinpoints additional obstacles that bode poorly for Trump.

"Case law on executive immunity is also sparse, so it is an issue that, conceivably, an appeals court and potentially the Supreme Court might want to wrestle with before a former president goes on trial," Barrett says. "It's at least theoretically possible that Trump's legal team could try another form of pretrial appeal, called seeking a writ of mandamus, but that is even more of a long shot than other types of interlocutory appeals."

Unfortunately for Trump, "It's very rarely used and even more rarely successful," McNamara said. "There are rules, there are laws, and there are procedures, and every litigant has to comply with those."

Barrett's column is available at this link (subscription required).

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