Today, at 9:30 a.m. Eastern Time, the United States Court of Appeals for the District of Columbia Circuit will hold oral arguments on Donald Trump’s appeal of the decision that he is not immune from criminal prosecution for the events of January 6. Apparently, the accused intends to personally attend this argument. (For the reasons discussed below, his attorneys are likely unhappy with the decision and Trump may throw a temper tantrum either during or after the argument.) For the millions who are unable to make it to the federal courthouse, the D.C. Circuit will be livestreaming the audio of the argument. And the recording will posted on the court’s website by the close of business today.
I am not going to spend time on the merits of the case because the merits are really one-sided. The trial judge in this case is respected by her peers and her order thoroughly demonstrates why Trump’s claim of immunity has no factual or legal merit. It will be affirmed. Instead, this post is intended to help readers understand what will be happening.
The first thing to understand is that oral argument is the last part of the case. Even at the state level, it is expected that the judges will have read the written arguments (formally known as briefs of the party). If the judges have the time, they may also have looked at the relevant portions of the trial court records to answer any factual questions that they may have about the proceeding. They may also have looked at the key cases cited by the parties to understand what those cases actually say (instead of how the attorneys have tried to spin them). In short, the judges have almost certainly formed an opinion about the issues in the case, and oral argument is a last chance for the parties to correct any misimpressions that they judges may have.
Second, oral argument is an argument to judges who have the time to rationally consider the merits of the case. While rhetoric and emotion have their role in effective advocacy, the types of appeals that you get in closing argument in a jury trial are less likely to go over well in oral argument. Oral argument is focused on very dry and technical legal issues. In other words, the type of over-the top attacks on the prosecution that Trump loves have no place in this argument.
Third, every presentation that I have ever attended on effective appellate representation describes oral argument as something like a conversation between the judges and the attorneys. As noted above, the judges have a decent understanding of the case and will have tentative opinions on the outcome. They will ask questions identifying the flaws in a party’s argument as flaws and ask the party to explain why the judge’s belief that the argument does not fly is wrong. They will also be seeking to understand the limits of the broad arguments of a party. If the party seems to be arguing that X is always the rule, the judges are going to poke and see if the party will concede any exceptions to the rule and explain where the extreme limit of the rule is. I have probably done something on the order of 50-60 arguments to appellate courts over the years, and it can be pretty clear within minutes that the court is not buying the arguments of one side. If you are the attorney for that side, you are quickly grasping at straws to find some argument that has even a chance at winning.
Fourth, oral argument is not a trial or an evidentiary hearing. There will be no witnesses called and nobody will be making a statement. Instead, it is a chance for the attorneys to emphasize their most important arguments and to answer the court’s questions about the case. Trump will not get a chance to speak to the judges or make comments in court.
Fifth, while the questions can hint at which side is winning, there is no immediate decision. In a case like this, it is likely that the opinion will come quickly (maybe by Friday or the early part of next week). But the judges will almost certainly not announce a ruling from the bench.
Because of the nature of oral argument, most attorneys would rather not have the client present. Even in cases that you win, there will be some probing questions that may seem hostile to the client. With a client as thin-skinned as Trump, it is almost certain that some questions will offend him. And because the judges are familiar with the issues and are trying to get specific issues clarified, the questions can seem like the court is biased. (As far as judges are concerned, bias or prejudice means that the court has prejudged the issues. Oral argument is not prejudgment. The judges have already read the written arguments and are in the final stages of arriving at the decision so they are in the process of judging rather than prejudging.) It is far easier to briefly summarize the highlights of the hearing later and focus on the major takeaways from the argument (and what the next steps might be) than to have deal with a client who wants to focus on the “bad” moments during the argument.
Given Trump’s nature, it is highly likely that (even he can avoid throwing a tantrum in the courtroom) he will make a public statement after the argument. He will probably complain about the biased panel (two Biden appointees and one George H.W. Bush appointee. He will probably complain about the unfair questions asked by the judges. In short, it will be a statement directed to the voters in Iowa and New Hampshire about how he is being martyred for them. After they stop pulling their hair out, Trump’s attorneys will simply tell themselves that they are hopeful that the judges will pay zero attention to his rant because it will not be well received by the judges.
As noted above, there will be no decision announced at the close of the argument. Instead, one of the judges will be assigned (or has already been assigned) to write an opinion setting forth the ruling and why it is legally correct. There is no deadline for the opinion. As such, it may be days, weeks, or even months until we get a decision. Given that the D.C. Circuit shortened the normal deadlines for the appeal, my expectation is that we will get an opinion very soon — probably within days and almost certainly by the end of January. And then we can get back to our spring/summer entertainment of seeing Trump become a convicted felon in several different jurisdictions.
UPDATE: There were three technical issues raised during the argument.
First, the normal rule is that parties can only appeal from a judgment (in other words, after the trial). In a limited number of circumstances, a pre-trial appeal is permitted. An outside party filed a brief suggesting that the trial court’s ruling was not an order from which a pre-trial appeal is allowed. A decision that the trial court’s ruling was not immediately appealable would allow the trial to proceed but postpone the immunity issue to a later post-trial appeal.
Second, there was discussion about a potential remand. If the appellate court finds that the trial court used the wrong legal standard, the normal remedy would be to send the case back to the trial court to make appropriate findings of fact under the correct legal standard. There would potentially be another round of appeals. When the trial court has made adequate findings, however, the appellate court can apply those findings to the correct standard. This approach would be Trump’s second preference as another round of appeals would delay the trial even more.
Third, there was discussion about staying the mandate. A mandate is the formal order of the appellate court deciding the case. What matters for this discussion is that the mandate restores the authority of the trial court to proceed. Trump wants a delayed mandate or a stay of that mandate so that the trial court is unable to proceed with the trial. The prosecution wants an immediate mandate and no stay so that the trial court can keep the March trial date (or at worst a rescheduled date in April or May).
