Donald Trump, Jack Smith Get Unusual Update From Judges

The U.S. Circuit Court for the District of Columbia issued a notice Tuesday to Donald Trump and Special Counsel Jack Smith informing them they should be prepared to discuss the arguments made in amicus briefs filed with the court.

This case was brought by the Department of Justice (DOJ) and Smith pertaining to Trump's alleged efforts to overturn the 2020 presidential election, which ultimately led to the riot at the U.S. Capitol on January 6, 2021.

Trump, the front-runner for the 2024 Republican presidential nomination, has maintained his innocence and claims that he has absolute immunity from criminal prosecution for anything he did while he was president. The claim was shot down on December 1, by Judge Tanya Chutkan.

Newsweek has reached out to the Department of Justice via its media contact website and Trump's lawyers via email for comment.

Tuesday's notice makes it clear that the court is interested in discussing the arguments in the amicus briefs when oral arguments begin on January 9.

Attorney Michael McAuliffe, a former federal prosecutor, said the notice was unusual, but it isn't surprising to see the court's interest in exploring a broader set of issues than is reflected by the parties.

"Evidently, the DC Circuit Court of Appeals is entertaining a wide array of arguments, including those raised in amicus briefs by non-parties," McAuliffe told Newsweek. "The court's pro-active notice that counsel for Trump and the special counsel should be prepared to address issues in the amicus briefs is noteworthy. Such a notice is unusual, but effective advocates already should know and be prepared to address any issues of interest to the panel of judges deciding any appeals case.

"Given the significance of the presidential immunity issues, the court's expansive interest and attention shouldn't be a surprise."

On Friday, American Oversight, a nonprofit legal watchdog group, filed an amicus brief that said the D.C. Circuit appeals court lacks the jurisdiction to take up Trump's appeal, and should therefore send the matter back to Chutkan and allow the trial to resume.

Sixteen Republicans—former prosecutors, elected or appointed officials and lawyers—signed on to the brief.

"As the American Oversight amicus brief argues, Supreme Court precedent [from 1989] prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on 'an explicit statutory or constitutional guarantee that trial will not occur,'" the group's official statement explained. "Trump's claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly."

Another amicus curiae brief argues that Trump shouldn't have been able to appeal.

"The closest precedent [to Trump's immunity case] is the Supreme Court's decision in United States v. Nixon, but that also addressed a subpoena and civil lawsuit," former federal prosecutor Neama Rahmani, president and co-founder of West Coast Trial Lawyers, told Newsweek.

"Trump's case is different because he is former president, not a sitting one, and courts have generally held that campaigning is not within the scope of one's official duties and therefore not within the protection of executive immunity. That's why Trump is arguing that his conduct was about election integrity and not his presidential campaign."

Trump is facing four criminal indictments at the state and federal levels, totaling 91 criminal charges.

In an interview with CNN on Monday, Jim Schultz, an ex-associate White House lawyer in Trump's administration, said the former president is poised to lose his presidential immunity appeal.

"So, Jack Smith has a winner on this one, right?" Schultz said on CNN's News Central. "I think in this instance, the D.C. Circuit Court is going to act swiftly, and I think they're going to knock down this immunity claim, you know, very swiftly."

Trump posted about the immunity case Tuesday via his Truth Social account.

"The ridiculous Deranged Jack Smith case on Immunity, which the most respected legal minds in the Country say I am fully entitled to, is now completely compromised and should be thrown out and terminated, JUST LIKE THE RADICAL LEFT LUNATICS DID TO THE EVIDENCE!" he wrote.