A new wrinkle has emerged in former President Donald Trump's immunity battle in his federal election interference case, with a watchdog group filing a brief on Friday calling for his appeal effort to be dismissed and for his trial allowed to resume.
Trump is currently contending with four criminal indictments at the state and federal levels, totaling 91 criminal charges in all. Among these cases is the federal one brought by the Department of Justice (DOJ) and special counsel Jack Smith pertaining to Trump's alleged efforts to overturn the 2020 presidential election, which ultimately led to the January 6, 2021, Capitol riot. Trump, the frontrunner in the 2024 GOP presidential primary, has maintained his innocence in the case.
Trump's current tactic in the case has been to claim that he has complete immunity from criminal prosecution for anything that he did while he was president. This claim was previously shot down by the judge overseeing the case, Tanya Chutkan, and is now set to go before the D.C. Circuit appeals court. Meanwhile, an effort by Smith to try and accelerate the appeals process straight to the U.S. Supreme Court was recently dismissed. As the process winds on, the trial has been put on hold, leading some observers to accuse Trump of trying to delay it as long as possible.
American Oversight, a nonprofit legal watchdog group, filed an amicus brief on Friday that said the D.C. Circuit appeals court lacks the jurisdiction to take up Trump's appeal, and should therefore send the matter back to Chutkan and allow the trial to resume.
"As the American Oversight amicus brief argues, Supreme Court precedent [from 1989] prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on 'an explicit statutory or constitutional guarantee that trial will not occur,'" the group's official statement explained. "Trump's claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly."
Newsweek reached out to Trump's team via email for comment.
In response to the filing, various legal experts and analysts chimed in on social media, with some calling the move "an interesting wrinkle."
"Interesting wrinkle in the battle over Trump's claims of presidential immunity: American Oversight, in an amicus brief, says the issue did not merit immediate appeal and the DC Circuit should simply kick the case back to Judge Chutkan for trial," New York Times legal reporter Alan Feuer wrote on X, the platform previously known as Twitter.
"Interesting argument in new amicus brief by conservative lawyers that Trump's immunity appeal is subject to final judgment rule and must wait until after trial," former U.S. Attorney Barbara McQuade, who previously served the Eastern District of Michigan from 2010 to 2017 and appointed by former President Barack Obama, wrote. "Brief uses textual reading of Constitution to argue stay should be lifted immediately."
American Oversight describes itself as a nonpartisan group, not conservative.
Ben Meiselas, co-founder of the MeidasTouch media outlet, laid out the brief's argument in-depth, noting that the 1989 ruling cited by it was written by the notably conservative Supreme Court justice, Antonin Scalia.
"Oh, I am liking this amicus brief just filed by a group called American Oversight in Trump's DC absolute immunity appeal," Meiselas wrote on X on Friday. "The brief points out that a 1989 Supreme Court case called Midland Asphalt holds that the DC 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."
He continued: "There is not strict textual support for Trump's immunity claim anywhere — at best it's based on a specious negative inference — thus the argument goes that the Appeals Court must dismiss the appeal and send it back for trial immediately. Conservative Justice Scalia wrote the Midland Asphalt decision. No one has made this argument before. This can be a game changer."
Correction: 12/30/23, 2:42 p.m. ET: This article and headline has been updated to reflect American Oversight's nonpartisanship.
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Thomas Kika is a Newsweek weekend reporter based in upstate New York. His focus is reporting on crime and national ... Read more
