How to stop Trump from running out the clock

Trump is trying to run out the clock on charges of plotting to overturn the 2020 election — so he can win, take office, and then order the case dropped.

Right now, the D.C. court of appeals is helping him.

I’ll get to what should be done in a moment. First, some background.

In December, when the court agreed to hear Trump’s appeal of the district court’s rejection of his bizarre claim of immunity from charges of plotting to overturn the 2020 election, it laid out a lightning-fast briefing schedule — asking the defense and prosecution to file their papers on successive Saturdays during the Christmas and New Year’s holidays.

Then it set up a hearing on January 9, just one week after all of the papers were submitted — also remarkably fast by the standards of the judicial system.

But now here we are, four weeks later, and still no decision.

On Friday, Judge Tanya S. Chutkan, the district court judge overseeing the election case, formally scrapped her plan to start the trial on March 4 — and said she’d set a new date “if and when” the immunity matter is resolved. Prospective jurors believed to have been called for the case were summoned to report to D.C.’s federal courthouse on Friday for an initial screening; that summons has now been canceled.

What the hell is going on?

It appears that court of appeals Judge Karen Henderson — one of the three judges on the appeals panel — has decided to drag her feet. (She was appointed by George H.W. Bush. The other two — Florence Y. Pan and J. Michelle Childs — were appointed by Biden.)

Henderson had previously dissented from expediting the immunity appeal. She has voted in Trump’s favor in several previous politically charged cases.

Friends, each day that passes without a ruling bolsters Trump’s strategy of seeking to run out the clock and postpone the trial until after the election.

Here’s the clock:

If, as expected, the panel rules against Trump, he is entitled to ask the full appeals court for rehearing, and then to seek Supreme Court review. Trump would ordinarily have 30 days to ask for review by the full appeals court, and 90 days after that to go to the high court.

Then the trial. Pretrial proceedings are stalled while the appeal drags on. Legal experts estimate those proceedings will take two weeks. Special Prosecutor Jack Smith has estimated that the trial itself will take two months.

In other words, even if the three-judge court of appeals issues their verdict today, we’re still facing a possible 27 weeks — more than six months — until a verdict.

Which means Trump’s trial might well overlap with the party conventions and the most intense weeks of the general election campaign.

But a failure to try Trump before the election would be a terrible disservice to American democracy.

Aren’t voters entitled to know before casting their ballots whether they are choosing a criminal felon?

A Morning Consult poll shows 23 percent of Republican voters from the swing states that will likely decide this election — Arizona, Georgia, Pennsylvania, Michigan, North Carolina, Wisconsin, and Nevada — would be unwilling to support Trump for president if he is convicted in one of the criminal trials he is currently facing.

The three-judge panel’s delay is unconscionable. There’s no reason for it. A different three-judge panel of the same court of appeals took just 18 days after oral argument to produce a thoughtful, 68-page opinion largely rejecting Trump’s challenge to the gag order issued against him by the trial judge. The issues of law posed by the immunity case are no more complex.

So what can and should be done?

First of all, the other two judges on the three-judge panel — assuming that one of the three judges is holding up the opinion — should immediately issue a ruling on their own, which would have the force of law. No federal rule prevents them from doing so.

Then, to further prevent Trump from running out the clock, both the appeals court as a whole and the Supreme Court should set tighter deadlines than is typical for filing and hearing arguments, and allow pretrial preparation to go forward while they weigh any appeal.

There is no excuse for allowing Trump to run out this clock. Justice delayed is justice denied to all of America.

Robert Reich is a professor at Berkeley and was secretary of labor under Bill Clinton. You can find his writing at https://robertreich.substack.com/.