Trump, Jack Smith Must Be Prepped to Address Legal Experts’ Amicus Briefs in Presidential ‘Immunity’ Appeal

Donald Trump's legal team and Special Counsel Jack Smith's prosecutors should come to court next week ready to discuss a range of issues raised in an official capacity by several outside legal experts, a federal appellate panel said Tuesday.

In a one-sentence order, the D.C. Circuit Court of Appeals ordered that at oral arguments scheduled for Jan. 9, both parties to the case should be prepared to address "any inquiries by the Court regarding discrete issues raised in the briefs filed by amicus curiae."

Trump's appeal centers on U.S. District Judge Tanya Chutkan's 48-page order on Dec. 1 denying Trump's motion to dismiss the charges on the grounds that he couldn't be charged for actions he took within the "outer perimeter" of his official duties as president. The Constitution’s text, structure, and history, Chutkan wrote in her order, "do not support that contention."

In the same Dec. 1 order, Chutkan denied the former president's argument that the prosecution violates the Fifth Amendment's "double jeopardy" clause because Trump was acquitted in his second impeachment trial.

Trump's legal team responded to Chutkan's denial by filing both an appeal with the D.C. Circuit Court of Appeals seeking reconsideration of the motion to dismiss charges and a motion to "stay," or pause, the proceedings in the case "pending the final resolution of his recently filed appeal."

The D.C. Circuit Court of Appeals is scheduled to convene at 9:30 a.m. on Jan. 9 to hear arguments on Trump's appeal from both parties.

In advance of the oral arguments, a range of groups have filed amicus curiae, or "friends of the court" briefs in recent weeks.

They include former Reagan-era Attorney General Edwin Meese III along with two law professors; the legal nonprofit group American Oversight; a group of 16 former government officials; and another from former government officials in five Republican administrations "and others who support a strong Presidency."

The brief filed by Meese and others argues that Smith lacks authority to prosecute Trump because his position was not authorized by Congress. Although separate from the substance of Trump's appeal, the filers say the D.C. Circuit is positioned to dismiss the charges on that basis.

"Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor," Meese and his co-filers wrote. "Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyoncé."

Other amicus briefs filed in the case side with Smith.

American Oversight's brief argues the immunity issue is "not immediately appealable" and Trump's appeal should be dismissed for lack of jurisdiction.

The group of 16 former government officials — including former Trump White House lawyer Ty Cobb, former deputy U.S. solicitor general Philip Lacovara, former Massachusetts Gov. William Weld — argued in their brief that "even if former presidents had some limited immunity from criminal prosecution, it could not conceivably cover the acts alleged here."

"Such activity threatens our constitutional structure at its core and, by its very
nature, eviscerates one of the primary constitutional checks on presidential
misconduct—rebuke by the people at the ballot box," the 16 officials wrote.

In a separate motion to participate as amicus curiae, a group of 24 former Republican officials including several former members of Congress argued that arguments made by Trump's legal team in the appeal are inconsistent with the Constitution.

"No Court should create a presidential immunity so vast that it endangers the peaceful transfer of executive power mandated by the Executive Vesting Clause," the former officials wrote.

Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial in Washington, D.C. is scheduled to begin the day before Super Tuesday on March 4, though the appellate reviews on Trump's immunity argument could lead to delays.

The three-judge panel scheduled to hear oral arguments on Jan. 9 will consist of Circuit Judges Karen Henderson, J. Michelle Childs and Florence Pan. Henderson was appointed by former President George H. W. Bush, while Childs and Pan were appointed by President Joe Biden.