The many oddities of the Trump immunity case

As the U.S. Supreme Court ponders what to do about the appeal by former President Donald Trump of the rejection by the federal appellate court of his defense of “absolute immunity” from criminal prosecution, the lower court ruling is worthy of a glance at some of its unusual features.

The monumental 57-page decision issued earlier this month in the election interference case — one of the four pending criminal cases against the former president — has been widely praised from nearly all quarters. Even many supporters of the ex-president have commended its well-reasoned, comprehensive, and coherent craftwomanship by the three jurists, one George H.W. Bush appointee and two appointed by Barack Obama.

The D.C. Circuit ruling was unprecedented, since the issue of presidential criminal “absolute immunity,” as argued on behalf of the ex-president, had never been adjudicated previously.

Although predictable, the ruling contained some odd features that have been glossed over or disregarded by legal commentators, political pundits and other onlookers.

While the result was expected even before the issuance of the unanimous decision, any doubt about the prospective outcome was dispelled by the disastrous oral argument four weeks earlier by the ex-president’s high-priced lawyer.

SEAL slaying 

The crucial moment was the memorable “SEAL Team 6” dialogue at oral argument about the scope of the immunity claim. Trump’s  counsel acknowledged a president clothed with immunity could order the military to slay a political rival or, by implication, anyone at all, without recourse. 

A better and less contentious answer may have been that the SEALs should disobey that kind of directive because it may be a crime under international law as well as a violation of American criminal law. 

Hope the lawyer got paid his fees up front.

Anonymous authorship

There were a number of other peculiarities.  

The decision does not have an identified author. Rather, it was published as written per curiam, meaning anonymously for the court as a whole.

While not unique, that kind of anonymity is very rare, especially for landmark and precedential rulings. The per curiam designation of anonymity is usually reserved for indisputable and relatively routine or inconsequential matters.

The anonymous designation may be ascribed to the way the decision appears to have been written in various portions; perhaps each of the judges took responsibility for a particular segment and then collectively wove the pieces together into a coherent whole. Or, it may have been emblematic of the court’s emphasis on its unanimity, although almost all unanimous appellate court rulings do have ascribed authors.

Some observers have speculated that the author or authors sought to avert threats or harm by remaining anonymous. 

Whatever the motivation, the per curiam status of the ruling is not its only oddity. 

Unusual undertakings 

Another unusual undertaking in the Trump immunity ruling is the court’s limitation of the scope of its ruling. Referring to the ex-president as “citizen Trump,” it stated that whatever form of “executive immunity” might apply “while he served as president” does not apply after he is no longer an occupant of the White House. The implication is that a president may have immunity for conduct, including criminality, during the term of office.

But that type of latitude given to a president while in office is contrary to the ruling and underlying reasoning of the U.S. Supreme Court more than 25 years ago in the civil sex harassment/retaliation lawsuit by Paula Jones against then-President Bill Clinton for his pre-presidential misbehavior. While not raising an immunity defense, the Clinton defense team asserted that the lawsuit should be stayed, or suspended, during his presidency because of the debilitating effect defending a lawsuit would have on the ability to carry out presidential duties, a disguised form of temporary immunity without using the “I” word.

Another unorthodox aspect of the Trump anti-immunity ruling was how the appellate panel reduced the normal time period for further proceedings. Ordinarily, a losing litigant in a federal appellate case has the right to appeal to the full tribunal, consisting of 11 judges in the D.C. Circuit, known as en banc review, and then 90 days afterwards to appeal to the U.S. Supreme Court, a process that generally consumes many months and would push any trial back on the calendar — likely past the November election.

But this panel would have none of that. Mindful of the political realities of this election year, it directed the president to appeal to the high court within six days, contrary to the rule allowing 90 days to appeal, an invitation — or challenge — that the ex-president accepted and filed for on the deadline while the trial schedule remains in limbo. 

It remains to be seen whether, when and how the justices will handle that appeal.

It was unconventional for a three-judge appellate panel to set the schedule for other tribunals, especially an upper-level tribunal, or to countermand the normal appellate timetable rules. In fact, it may be the first time it’s occurred. 

That’s yet another highly unusual aspect of an unprecedented case.