Editor’s note: This article has been updated. The updated analysis is: here.
This updated article provides an overview of the potential procedural pathways for former President Donald Trump’s ongoing appeal of his federal prosecution for election interference by Special Counsel Jack Smith. Now that the DC Circuit issued its opinion on Tuesday, Feb. 6, we lay out the possible paths forward for the appeals process from here and the potential timing of a trial start date. As before, our analysis is based on the assumption that Trump will lose before the courts, given the weaknesses of his argument for immunity, and the question is how long it will take the judicial system to reach that final conclusion.
Our analysis suggests that a trial, which is anticipated to last between 8 and 12 weeks, may conclude in late August or early September if the Supreme Court denies Trump’s eventual cert petition or in mid to late October if the Supreme Court grants Trump’s cert petition. We caution however that court timelines are unpredictable, and that these dates simply represent probabilities—not certainties.
What Happens Now
Upon a DC Circuit panel issuing a ruling, the court issues a “mandate” that serves as the procedural step sending the case back to the trial court. Whenever the mandate is issued, the stay automatically lifts. When that happens here, Trump will have to take further action to secure a new stay pending further appellate proceedings in the en banc court or the Supreme Court.
Trump’s maneuvers now depend on how the DC Circuit panel handled the issuance of the mandate. The panel withheld the mandate until Monday, Feb. 12. If Trump files an emergency application for a stay with the Supreme Court, the mandate is further withheld until the Supreme Court resolves that emergency application. However, the issuance of the mandate is not withheld if Trump files a petition for rehearing or rehearing en banc with the DC Circuit.
The structure of the DC Circuit’s order on the mandate means that Trump will most likely file his emergency application on Monday, Feb. 12. He has no incentive to file earlier than Feb. 12, because the DC Circuit’s order extends the stay from the moment of his filing that petition until whenever the Supreme Court acts on it. He cannot file later, because the district court (Judge Tanya Chutkan at the trial court level) retakes jurisdiction over the case the moment the mandate issues.
Trump’s emergency application to the Supreme Court will be handled by the Circuit Justice, Chief Justice Roberts, who will have three options: (1) deny the motion himself (which we believe will not happen); (2) refer it to the full Court to act on, without acting on it himself; or (3) impose an administrative stay while the Court reviews the cert petition. Supreme Court Rule 23(2) and 22(5). A stay from the full Court is the most likely. Ultimately, a majority of the Justices (at least five) must vote to resolve the stay issue, pursuant to the Supreme Court’s well-known internal procedures. See Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court’s Emergency Stays, 44 Harv. J.L. & Social Policy 3 (2021). If the Court grants a stay, it would remain in place throughout the disposition of Trump’s appeal to the Supreme Court: If the Court denies cert, that is the end of the process; if it grants cert, the stay would be in place until the Court ultimately rules. FRAP 41(d)(2)(ii).
A key question now is how the Supreme Court crafts its order granting the emergency application for a stay pending his filing a cert petition for the Court to review the case. (If it denies the stay, then the mandate returns immediately to the district court which will then restart pretrial proceedings.) If the Court’s order granting the stay places no limitations on that stay, then Trump could take the full 90 days to file a cert petition under the Supreme Court’s rules. Indeed, it could potentially enable him to file a petition for rehearing en banc with the full DC Circuit prior to a cert petition. For that reason, we anticipate that if the Supreme Court grants Trump’s emergency application for a stay, it will limit that stay to a specific number of days after which the stay will dissolve automatically unless Trump has filed a cert petition. (This would eliminate Trump’s incentive to seek en banc review.) From there, the Supreme Court will likely follow a similar expedited procedure for cert review that it imposed in December. We therefore think that the stay will likely be limited to no longer than 10 days. The Special Counsel would file its responsive brief immediately, and Trump would then have perhaps a few more days to file a reply. Thus, within two weeks from the filing of the cert petition, that process should be completed. This possibility would yield a decision on Trump’s cert petition (whether to hear the case on appeal) as early as Feb. 29 (with later being quite possible).
There is another possibility. The Supreme Court could treat Trump’s emergency application for a stay as a cert petition and grant it immediately. The reason the Court might do so is that, at that point, both Trump and the Special Counsel will have told the Court that it should review the case–Trump in his emergency application for a stay, and the Special Counsel in his December petition for cert before the DC Circuit’s judgment. If the Court is inclined to take the case, it may not feel that an additional round of briefing from the parties telling it that it should would serve any purpose. In that case, the Court would grant cert as early as the same day, next Monday, Feb. 12 (or a few days later perhaps). We consider this a more likely option.
If the Supreme Court denies Trump’s cert petition, it would do so as soon as Feb. 29. (Theoretically, the Court could reject the petition as soon as Feb. 12, but it is far more likely they will give Trump the opportunity to file a brief in favor of the petition first.)
Upon denial of cert, the case would then return immediately to the district court, which would restart pretrial proceedings. With another three months of those pretrial proceedings to go, trial would begin approximately June 1. (It is likely that Judge Chutkan will use the same period of time, though she may choose a shorter schedule this second time around.) A three month trial would then conclude around Sept. 1.
If the Supreme Court grants cert, it will probably be around another month until oral arguments occur – we think it is likely the Court will implement some form of an expedited briefing schedule, given its prior activity. In December, Smith asked for 21 days between the Court granting cert and oral argument (per the U.S. v. Nixon precedent); the Court may fashion a slightly longer schedule. After oral argument, we suspect the Court will issue its decision in an expedited fashion – slower than Bush v. Gore, which was decided in a couple days; but faster than the typical timeline on a merits decision, and so perhaps within another month. That amounts to about two and a half months between Trump’s petition for cert and a final disposition by the Supreme Court.
Assuming that briefing and argument schedule at the Supreme Court, we anticipate the oral argument to take place at some point in March – between March 5 and 15 (if the Court treats Trump’s emergency application for a stay next Monday as a cert petition and grants it immediately) or between March 18 and 27 (if the Court grants Trump’s application for a stay and gives him 10 days to file a cert petition). If the Court then takes another month to issue its decision, we anticipate that decision to be issued at some point in April – between April 5 and April 15 (in the shorter cert grant scenario) or between April 19 and 30 (in the longer scenario).
Once the Court issues its decision, the case would then return immediately to the district court, which would then restart pretrial proceedings. With another three months of those pretrial proceedings to go, trial would begin approximately between July 5 and July 15 (in the shorter cert grant scenario) or between July 19 and 30 (in the longer scenario). A three month trial would conclude between Oct. 5 and Oct. 15 (in the shorter cert grant scenario) or between Oct. 19 and Oct. 30 (in the longer scenario).
Accordingly, if the Supreme Court follows the timelines we lay out above–which we believe are well-supported by its prior practices–Trump’s trial would conclude no later than just before Election Day on the longer timeline and by Sept. 1 on the shorter timeline if there is a denial of cert.
Of course, it is within the Supreme Court’s power not to enforce an expedited appellate schedule. If so, they could conceivably wait until the end of this year’s term in late June to issue its decision. Under that approach, the trial would not begin until approximately Oct. 1 and would not conclude until around Jan 1, 2025. That delayed schedule would create enormous uncertainty surrounding the election, which would take place in the middle of Trump’s trial. Accordingly, we think it is both unwise and unlikely for the Supreme Court to do so. It is also just as unlikely, though theoretically possible, for the Court to grant cert but not hear the case this term at all.
