Table of Contents
The DC Panel could have handled the interlocutory differently by finding it lacked jurisdiction under the collateral orders doctrine. And it should have.
The doctrine has not achieved coherence in the 75 years since it first arose. See Matthew R. Pikor, The Collateral Order Doctrine in Disorder: Redefining Finality, 92 Chi.-Kent L. Rev. 619 (2017). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol92/iss2/11
The law is particularly poorly developed in criminal procedure. There are a handful of Supreme Court criminal cases, one of which posited the "right not to be tried" if the Double Jeopardy Clause applied. Requiring a trial to go to judgment would defeat the purpose of the right protected under the Double Jeopardy Clause, so pre-judgment appeal was proper. The DC panel invoked such a right not to be tried to establish its jurisdiction.
The panel should not have done so. After spooling up the issue this way
The [Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989)] Court emphasized that criminal collateral orders that are based on [a] right not to be tried must rest[ ] upon an explicit statutory or constitutional guarantee that trial will not occur singling out the Double Jeopardy Clause and the Speech or Debate Clause. 489 U.S. at 801 … . Former President Trump does not raise a straightforward claim under the Double Jeopardy Clause but instead relies on the Impeachment Judgment Clause and what he calls double jeopardy principles."
However
… Midland Asphalt is distinguishable and does not require immunity to derive from an explicit textual source. Second, the theories of immunity former President Trump asserts are sufficient to satisfy Midland Asphalt under Circuit precedent.
That precedent included cases in which rights to not be tried were "analogous" to similar rights established by the Speech or Debate Clause and principles of Double Jeopardy.
In Midland Asphalt Justice Scalia, writing for the court, stated
There is a "crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges." United States v. Hollywood Motor Car Co., 458 U. S. 263, 269 (1982). A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur -- as in the Double Jeopardy Clause ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"), see United States v. Hollywood Motor Car Co., 458 U. S. 263, 269 (1982), or the Speech or Debate Clause ("[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place"), see United States v. Hollywood Motor Car Co., 458 U. S. 263, 269 (1982). Neither Rule 6(e) nor the Constitution affords such a guarantee in the event of a violation of grand jury secrecy.
However, under the Panel's reading, the proposition that
it is a mistake to parse terms in a judicial opinion with the kind of punctilious exactitude due statutory language [quoting Gorsuch, J.]
is authority (among similar sources) to distinguish Midland Asphalt when considered with DC Circuit precedents
There is good reason not to read Midland Asphalt literally here. Read in context, the Court's use of explicit was simply to contrast a right against trial and a right that entitles the defendant to the dismissal of charges. The latter can be vindicated through appeal after a final judgment, but the former cannot.
Along the way, the Panel lost sight of the holding in Midland
Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried. An isolated breach of the traditional secrecy requirements does not do so.
For these reasons, the Court of Appeals was correct to grant the Government's motion to dismiss the appeal, and its judgment is
Affirmed.
In United States v. Trump a grand jury returned an indictment. What was the defect so fundamental that it might cause the indictment no longer to be an indictment?
The answer to that must begin with the face of the indictment, which fairly can be summarized as
The defendant engaged in a conspiracy in violation of law. At all times relevant he held the office of the president of the United States. No conduct is alleged at any time he did not hold that office. Some of Defendant's acts were purely private and some of the acts were taken under color of authority of his office but outside the scope of his official power or duties as president of the United States.
Taking the indictment this way reduces the ultimate question of immunity to its essence as a single legal issue:
Were the acts alleged within the scope of the powers and the duties of the presidency?
Trump's claim was that because the acts alleged were official acts within the scope of the powers and duties of the presidency, he is categorically immune from prosecution. The DC panel thought not. Because the panel concluded, in Footnote 14 to its opinion, that
… former President Trump is not entitled to categorical immunity from criminal liability for assertedly "official" acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of "official acts." Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered "official," including all the conduct alleged in the Indictment. Appellant's Br. 41-42. But in Blassingame, taking the plaintiff's allegations as true, we held that a President's "actions constituting re-election campaign activity" are not "official" and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts "as office-seeker, not office-holder," he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that "all five types of conduct alleged in the indictment the indictment constitute official acts."
The panel should first have addressed the official acts question. The panel could have held
The defendant's right not to be tried rests on his claim that "all five types of conduct alleged in the indictment the indictment constitute official acts" and, accordingly principles of separation of powers, double jeopardy and the negative implication of the impeachment clause immunize him from criminal liability and the indictment must be dismissed as to official acts.
The defendant's bare assertion of the official character of the acts alleged is unpersuasive. Accordingly, even if we were to find an implied executive immunity it would not apply to actions constituting re-election campaign activity. [Citing and explaining Blassingame]. We lack jurisdiction under the collateral order doctrine to decide an appeal before final judgment on the basis of a purported immunity from trial that rests on facts that are missing from the indictment.
Returning to Judge Chutkan's courtroom, the battle can be rejoined through the jury instructions. For example,
If you find that the acts of the defendant alleged by the government to have been taken in his capacity as a candidate for president and not in his official capacity as president exercising his constitutional duty …
On conviction, Trump can then appeal on the basis that no reasonable jury could have found the acts anything other than official.
