Special prosecutor Jack Smith conceded that the DC circuit has appellate jurisdiction to hear Trump's interlocutory (interim) appeal over denial of criminal immunity for his actions on 1/6/2021 under 28 U. S. C. § 1291 , allowing for immediate interlocutory / interim appeal.

Trump's appeal reasoning is not based on any explicit textual claim in the Constitution against having to stand trial (e.g: Speech and Debate Clause), but in Constitutional structure and purpose. The Supreme Court held unanimously in 1989 case of Midland Asphalt that unless such an explicit textual support exists, criminal denials of immunity are NOT immediately appealable as a final judgement / no recognition of Cohen exception / inapplicability of collateral order doctrine.

If Jack Smith had raised this precedent that the DC circuit lacks subject matter jurisdiction to hear Trump's appeal, would this not have expedited trial with Tanya Chutkan? Now that he conceded jurisdiction, would this not only delay trial schedule as regardless of how the DC appeals court rules, Trump can ask SCOTUS to review?

  • Was the choice of Jack Smith to forgo argument of lack of appellate jurisdiction over Trump's immunity appeal intentional as trial strategy or a blunder? Many big name law professors / attorneys on Twitter were shocked Jack Smith eschewed Midland precedent, that plays to his advantage.

  • Given federal courts have an independent obligation to evaluate whether they have jurisdiction over a claim regardless of the positions of the parties and can sua sponte (on their own volition) dismiss a claim for lack of subject matter jurisdiction (FRCP 12b), how much does Jack Smith's choice to forgo the Midland Asphalt precedent matter?

  • Given lack of subject matter jurisdiction is a favored defense under FRCP 12b and can be raised at any time by the counter party (i.e. Jack Smith), what is his motive for pushing for a decision on the merits instead of securing a procedural win? Is the motive to seek finality or seek to influence SCOTUS if it decides to grant certiorari?


1 Answer 1


Trump’s brief says the following about appellate jurisdiction:

The district court's decision constitutes a “final decision” under 28 U.S.C. § 1291 and the collateral-order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949); Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982). The denial of presidential immunity “is an immediately appealable collateral order.” Wuterich v. Murtha, 562 F.3d 375, 381–82 (D.C. Cir. 2009) (citing cases). So is the denial of President Trump's double-jeopardy claim. Abney v. United States, 431 U.S. 651, 659 (1977).

This is essentially accepted at page 2 of the government’s brief. It’s not inconsistent with Midland Asphalt, which turned on the “crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges.”

Although the Court found in Midland Asphalt that “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,” this doesn’t mean that an alleged constitutional immunity needs “explicit textual support.” It just means that the defendant must argue that they are immune from trial as a matter of law, as opposed to alleging a violation of some other law (in Midland Asphalt, the one about grand jury secrecy) which could possibly, but not necessarily, result in the charges being dismissed.

  • Given the judicial style of the late Scalia who wrote Midland, I can see why textual support was important to him. Can you answer bullets 2 and 3 pertaining to FRCP and Jack's possible motivations for eschewing Midland argument?
    – Anthony
    Jan 2 at 14:35
  • More generally, interlocutory appeals are allowed on immunity claims no matter what the basis is of the immunity claim.
    – ohwilleke
    Jan 2 at 21:34
  • @ohwilleke, how does that general rule stand though with Midland precedent? Where is the statutory or Constitutional guarantee against trial? Speech / Debate Clause has explicit guarantee , but where here with Trump?
    – Anthony
    Jan 2 at 22:57
  • @ohwilleke, given appeals court is obligated to independently evaluate, and sua sponte , dismiss is jurisdiction is lacking, do they typically do this though? Maybe you can write an answer as many law professors wrote on Twitter they were surprised Jack eschewed Midland
    – Anthony
    Jan 2 at 23:05
  • @Anthony Immunity and lack of jurisdiction are two different thing. A court can have subject-matter jurisdiction over a case where the defendant has immunity. All courts, trial and appellate, do sua sponte independently evaluate and dismiss when jurisdiction is lacking. I've had it happen in a recent case that I litigated and have seen it happen in other cases. sly's analysis of Midland Asphalt looks correct and unsurprising to me, although I haven't researched it exhaustively. The same approach is taken in far more numerous common law qualified immunity claims in 42 USC § 1983 cases.
    – ohwilleke
    Jan 2 at 23:32

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