Fears grow a key Trump legal fight could be delayed

Legal observers are growing increasingly worried that former President Trump’s criminal prosecution related to an allegedly lawless campaign to overturn the 2020 election could be delayed past November, which could help bolster his efforts to return to the Oval Office.

Trump’s delay tactics are a well-worn strategy by the former president and his legal teams to bend circumstances in his favor. And now, with an appeals court weighing whether he’s protected from prosecution by presidential immunity, Trump’s goal of facing voters before he faces a federal jury is growing likelier with the judge issuing a full stop on trial proceedings in Washington until that determination is made.

“I am officially now at the freakout stage,” Obama-era acting U.S. Solicitor General Neal Katyal told MSNBC on Sunday. 

Anticipation had run high that the three-judge D.C. Circuit Court of Appeals panel would rule quickly, as the panel agreed to expedite the case and directed the attorneys to file their written briefs on the Saturdays preceding Christmas and New Year’s, no less. 

But four weeks after oral arguments, the panel has still not handed down their decision. 

Meanwhile, U.S. District Judge Tanya Chutkan has issued a full stop on the trial proceedings, indefinitely delaying Trump’s trial once set for March 4. 

That only bolsters Trump’s strategy to run out the clock and potentially pardon himself of the federal charges should he again win the White House, sidelining prosecution before a conviction.

The stalling has thrown anti-Trump legal pundits into full spiral, warning that it could only help the likely GOP nominee who is polling, at times, neck and neck with President Biden.

Norm Eisen, counsel for the Democrats in Trump’s first impeachment, called the lack of a ruling a “temporary win” for the former president. 

“We’ve been waiting, clock’s running, we’ve been waiting almost four weeks,” Eisen said on CNN over the weekend. 

“I think we’ll get something from them. I hope we’ll get something from them soon,” he added. 

Recent surveys have somewhat tipped the scale in terms of how voters feel about casting a ballot for Trump should he be convicted before Election Day.

A Bloomberg News/Morning Consult poll last week found more than half of battleground state voters, including nearly a quarter, or 23 percent, of Republicans, would not vote for Trump should he be convicted. That figure rises to 55 percent should Trump be sentenced to prison. A CNN poll this week found that most voters want to see prosecution of the election subversion case before voting in November. 

Trump was charged with four counts in August alleging he conspired to overturn the 2020 election and spurred his supporters to disrupt the Jan. 6, 2021, congressional certification of the results, one of four indictments he faces. Trump pleaded not guilty to all the charges. 

For one of his pretrial defenses in the Jan. 6 case, Trump has contended he has criminal immunity for official acts during his presidency. Chutkan, an appointee of former President Obama, rejected that argument, bringing the novel constitutional issue before the three-judge D.C. Circuit panel. 

During the hour-plus oral argument last month — at which Trump was present — the panel appeared unconvinced by Trump’s lawyers’ claims that a president can’t be prosecuted if not first impeached and convicted by Congress. 

But the three judges, one former President George H.W. Bush appointee and two President Biden appointees, did signal at least some disagreement, leaving the exact contours of their ruling a mystery. 

The court has been silent ever since. With no formal rules to force a judge to release its decision quicker, the nature of the internal deliberations — and the reason behind the holdup — remain unclear. 

“At what point does the DC Circuit Chief Judge speak to Judge Henderson to politely tell her to SNAPADOODLE in the Trump immunity decision? I’d say, about a week ago!” Andrew Weissmann, a prosecutor for special counsel Robert Mueller’s Russia investigation, wrote on X, the platform formerly known as Twitter. 

A decision in the coming days would still be speedy compared with the D.C. Circuit’s normal operations. Nonexpedited cases typically take months to progress through the process. 

To keep his election subversion case on track, special counsel Jack Smith sought to avoid timing complications at the D.C. Circuit by asking the Supreme Court to leapfrog the process and immediately take up the immunity issue.  

But the justices rejected the request, so Smith will now have to race against the clock, with the future of his prosecution potentially on the line. 

One way or another, the immunity issue is widely expected to eventually land at the Supreme Court. But first, the side that loses before the three-judge D.C. Circuit panel could eat up additional time by asking the full appeals court bench to reconsider the ruling. 

If the case does eventually move ahead after the appeals process is exhausted, Trump’s trial still won’t be immediate, with the judges still needing to consider an array of pretrial motions, which could take weeks or months. 

And once the case does reach trial? Smith previously projected the government’s case will take four to six weeks to present. 

Altogether, a possible verdict is inching toward the vicinity of the Nov. 5 presidential election — or even afterwards.

“I have no idea what the Court of Appeals is doing right now,” Katyal told MSNBC.  

“This is a real problem,” he added.