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A court case involving a tarring company that was indicted for price fixing should prevent Donald Trump from claiming presidential immunity, a group of lawyers have stated in a submission to federal court.
Trump is currently requesting that the Washington D.C. court of appeals declare that he has presidential immunity on charges of illegally interfering with the 2020 presidential election.
Trump was previously denied presidential immunity by Tanya Chutkan, the judge in his federal election interference trial, which is due to begin in Washington, D.C. in March 2024.
Lawyers for an independent nonprofit, American Oversight, have submitted an amicus brief to the appeal court, [see below], arguing that Trump cannot stop Chutkan's trial.
An amicus brief is a legal analysis filed in court by groups not directly involved in the case.
American Oversight's brief, filed on Friday, argues that Trump's appeal should be denied, based on the Midland Asphalt ruling that was delivered by the conservative Supreme Court judge, Justice Antonin Scalia, in 1989.
It involved a company that tarred roads in upstate New York that was indicted for alleged price fixing of government contracts.
Midland Asphalt wanted its case thrown out because it claimed prosecutors had illegally revealed details of grand jury testimony.
The judge in the case denied that request and the company challenged that refusal.
Scalia, for the Supreme Court, said that an interlocutory order—one that is delivered after a case has begun—cannot be appealed unless there is a law or constitutional provision in place that allows the court to do so.
American Oversight states in its amicus brief that Trump's appeal should be dismissed based on Scalia's ruling.
It states that, under controlling Supreme Court precedent, an interlocutory order in a criminal case is not immediately appealable unless it "rests upon an explicit statutory or constitutional guarantee that trial will not occur."
"Applying Midland Asphalt, this court and other courts of appeals have long dismissed interlocutory appeals asserting claims of criminal immunity not based on an explicit textual guarantee," the American Oversight briefing states.
"The arguments asserted by former President Trump here fail Midland Asphalt's straightforward rule of appellate jurisdiction," the briefing adds.
Harry Litman, a University of California, Los Angeles, law professor and former federal prosecutor, wrote on X, formerly Twitter, on Sunday that if the court of appeals accepts the Midland Asphalt logic, it would be "huge".
He also noted that "a very eminent and largely conservative set of lawyers" joined the American Oversight brief.
Trump is currently contending with four criminal indictments at state and federal levels, totaling 91 criminal charges in all. Among these cases is the federal one brought by the Department of Justice and Special Counsel Jack Smith pertaining to Trump's alleged efforts to overturn the 2020 presidential election, which ultimately led to the January 6, 2021, Capitol riot. Trump, the frontrunner in the 2024 GOP presidential primary, has maintained his innocence in the case.
Trump's current tactic in the case has been to claim that he has complete immunity from criminal prosecution for anything that he did while he was president. This claim was previously shot down by the judge overseeing the case, Chutkan, and is now set to go before the D.C. circuit appeals court. Meanwhile, an effort by Smith to try to accelerate the appeals process straight to the U.S. Supreme Court was recently dismissed.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more