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Trump has few options to appeal before trial, but motions can delay trial

When former President Donald Trump said last week he would appeal a federal judge’s decision to schedule his election obstruction trial in Washington in March, legal experts quickly dismissed the idea.

This is because the date on which a trial is set is generally not an appealable issue. In addition, the court system is generally reluctant to review a judge’s decisions in a criminal case until the trial is complete.

Federal courts have long held — and state courts generally agree — that defendants should not be able to appeal most pretrial rulings until the trial is complete. If they could, their cases would probably drag on much longer before they went to a jury.

Appellate courts tend to loathe such appeals and only consider them in rare cases where a trial judge’s decision might cause harm that cannot be repaired by a post-conviction appeal.

“Most people think a person can appeal anything they don’t like about a case, and that’s just not how the system works,” said Linda Julin McNamara, former deputy chief justice officer. calls to the US Attorney’s office in Tampa. “There’s not much he can do at this point to slow things down through the appeals process.”

Trump, the Republican candidate for the 2024 presidential nomination, faces four criminal cases: federal charges in Washington DC and state charges in Georgia for trying to block Joe Biden’s victory in the presidential election in 2020, federal charges for mishandling classified documents in Florida and one state. commercial fraud case in New York. He pleaded not guilty to the 91 counts brought against him.

Breaking down the 91 counts Donald Trump faces in his four indictments

Lawyers for the former president have argued, unsuccessfully so far, that his trials should take place after the 2024 election, sometimes citing the timing of the presidential campaign or the complexity of the charges against him.

A date for Trump’s trial in Georgia has yet to be set. And once the dates are written on the calendar, they recede as courts deal with conflicts and pre-trial motions. But the judges in charge of his other cases have scheduled the start of his trial for March 4 in Washington; March 25 in New York; and during the two-week period that begins May 20 in Florida.

Former President Donald Trump was indicted on August 1 on charges related to the preparation of the January 6, 2021 insurgency. (Video: HyoJung Kim/The Washington Post, Photo: Jabin Botsford/The Washington Post)

In the Washington case, Trump had requested a trial date in early 2026, which U.S. District Court Judge Tanya Chutkan dismissed as far too long to wait. Prosecutors had suggested a January trial date.

After Chutkan settled the issue on March 4 in a hearing last week, Trump posted on social media that “a biased, Trump-hating judge only granted me a two-month extension, exactly what what our corrupt government wanted. He also noted that Super Tuesday, one of the most important primary days of the 2024 presidential race, comes just one day after the proposed start of the trial. “I will appeal! Trump wrote.

Kirsten Small, appellate attorney at Maynard Nexsen, said courts severely limit appeals that can be filed before trial, particularly in criminal cases, but allow them “when the defendant is going to lose rights that cannot be recovered”.

So, for example, if a defendant faces a double sentence – being tried twice for the same alleged crime – an appeals court could step in.

“It’s kind of like an instant video replay of a court case because it stops the broadcast and submits it to a higher authority,” Small said. “But for that reason, it’s quite limited.”

Defendants can file pre-trial motions, however, and these also take time to be considered by a judge. Trump’s attorney, John Lauro, told Chutkan during the August 28 hearing that the former president’s legal team was preparing a series.

Trump was indicted in Washington on four counts: conspiracy to defraud the United States; conspiracy to obstruct official process; obstruction of official process; and conspiracy against the right to vote. Lauro said he would attack the indictment on multiple fronts, arguing that the former president’s actions were protected by the First Amendment – that he had the right to speak and act on what claiming to be an election fraud in 2020 – and claiming that Trump was a victim of politically motivated selective prosecution.

Lauro also told the judge that Trump’s lawyers are ‘going to present a very, very unique and thorough motion that deals with executive immunity’ – arguing that in 2020 and early 2021 Trump was acting in his capacity as president. and therefore immune from prosecution. Such a petition could be filed in the first half of this month, he suggested.

Of all the legal issues raised by Lauro since his client was indicted in the case in early August, it is the executive immunity request that, once decided by Chutkan, probably has the best chance of achieving a higher court before trial – what lawyers call interlocutory proceedings. call.

“There is a very small category of issues that can be raised on an interlocutory basis, and in that case, immunity is something that may merit an interlocutory appeal, because immunity is total immunity from prosecution,” said McNamara said. In other words, if someone has immunity, they not only have immunity from being convicted of a crime, but also from being prosecuted and tried.

Case law on executive immunity is also sparse, so it’s something an appeals court and possibly the Supreme Court might want to consider before a former president faces trial.

It’s at least theoretically possible that Trump’s legal team could try another form of pre-trial appeal, called an application for mandamus, but it’s even riskier than other types of interlocutory appeals.

A writ of mandamus is intended for use only in cases where a trial judge has rendered a decision so manifestly contrary to judicial practice that the attorneys handling the case and the higher courts believe it should be remedied immediately. .

“It’s very rarely used and even more rarely successfully,” said McNamara, who added that while a defendant can file a notice of appeal, that doesn’t mean they have the right to appeal.

“There are rules, there are laws and there are procedures, and every litigant must comply with them,” she said.

The rules on pre-trial appeals may apply differently to prosecutors and defense attorneys. For example, Prosecutors are generally allowed to appeal before trial if a judge decides they cannot use key evidence, but defense attorneys cannot appeal evidentiary rulings against them until the end of the trial. And in cases involving classified information — like the DC case and the Florida Classified Documents case — prosecutors have more leeway to appeal a trial judge’s decision before trial.

Chutkan has given attorneys until October 9 to file any pretrial motions in the DC case.


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