Former prosecutor and longtime legal analyst Harry Litman walked through the amicus brief filed by a group of conservatives and American Oversight, which cites the late Justice Antonin Scalia in a decision that could upend Donald Trump's desperation to delay his trial.
Taking to social media on Sunday after a follower asked him to explain it in simple terms, Litman said that the way Scalia wrote his majority decision would force Trump's appeals and delays to wait until after the trial is held.
The brief, filed on Friday, addresses Trump's claim that he has absolute immunity from any criminal prosecution. Trump has already argued the case for civil prosecution, which was struck down. Litman cited the first point in the brief, that the court lacks appellate jurisdiction.
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"An order denying criminal immunity is not immediately appealable unless the claimed immunity rests upon an explicit textual guarantee against trial," it reads. At another point, it references, "Mr. Trump’s arguments rest upon structural constitutional principles and negative implication, not upon any explicit textual guarantee against trial."
Litman explains that one of the biggest concerns is that Trump can use every possible legal idea to delay his trial until he becomes president and can have his new Justice Department drop it. Otherwise, he'll be able to score as many stays as he wants until everything is finally decided by the U.S. Supreme Court.
The 1989 decision from Scalia, "seems to say that you don't always get a stay just because if you win the trial doesn't happen," said Litman, explaining it is the case in this instance. "Rather, the case says, only in rare instances in which the constitution itself of a statute provides a right not to go to trial. And here executive branch immunity seems not to be such a provision."
The idea of immunity, he said, was essentially created in U.S. v. Nixon.
"And if [the] court of appeals agrees that's what the case (Windsor Court) says, then the remedy is that it has no jurisdiction and the case just goes back to [Judge Tanya] Chutkan, we're back in the timeline she set, and he can only appeal the denial of immunity after losing at trial so the whole time issue would go away."
His other claim is under the idea of "double jeopardy," saying that because he was "tried" in the Senate he can't be tried in the judiciary. It isn't expected to fly and oddly flies in the face of then-Senate Majority Leader Mitch McConnell (R-KY), who argued Trump should be tried in court, not the Senate since he was no longer in office.
The appeals court already accepted the brief, so Litman thinks that they'll ask for responses from Trump's team and special counsel Jack Smith.
Ben Meiselas, co-founder of the MeidasTouch, similarly explained, "The brief points out that a 1989 Supreme Court case called Midland Asphalt holds that the D.C. Circuit doesn't even have jurisdiction to hear Trump's appeal and must dismiss since an interlocutory appeal (appeal mid-case) can only occur when there is strict textual support for the appeal in a statute or in the Constitution like the Speech or Debate clause."
